Workplace Investigations
Contributing Editors
Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.
IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.
Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.
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01. What legislation, guidance and/or policies govern a workplace investigation?
01. What legislation, guidance and/or policies govern a workplace investigation?
India
India
- at Trilegal
- at Trilegal
- at Trilegal
There is no codified law in India on conducting workplace investigations, so they largely depend on the internal policies of the employer. Certain requirements and best practice measures have evolved through judicial precedent, and these are codified through internal policies.
For claims involving sexual harassment, however, investigations can only be undertaken by the Internal Committee (IC), which an employer needs to constitute under the Prevention of Sexual Harassment of Women and Workplace (Prevention, Prohibition and Redressal) Act 2013 (SH Act).
The general principle laid down by the courts is that any action against an employee for misconduct should be taken after conducting a disciplinary inquiry as per the principles of natural justice (PNJ). Whether or not a disciplinary inquiry can be done away with in any circumstances is a very fact-specific assessment and depends on various factors, including but not limited to the seniority and location of employment of the employee, and the nature and circumstances of the alleged misconduct.
The PNJ broadly require:
- that the accused employee should be issued with a written charge sheet or notice setting out the allegations against him or her along with a reasonable opportunity to respond;
- appointment of an independent inquiry officer to assess whether the allegations are proven or not; and
- that action must be taken based on the outcome of the inquiry, any punishment ordered should be proportionate to the gravity of the misconduct, and also take into account the service history (eg, prior warnings) of the individual.
The charge sheet or notice issued to the employee has to set out the evidence used by the employer to support the allegations in sufficient detail. Therefore, gathering necessary information and evidence is usually a critical precursor for any disciplinary process that an employer may eventually initiate against an employee.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
There is no specific legal regulation for internal investigations in Switzerland. The legal framework is derived from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights. Depending on the context of the investigation, additional legal provisions may apply; for instance, additional provisions of the Swiss Federal Act on Data Protection or the Swiss Criminal Code.
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
India
India
- at Trilegal
- at Trilegal
- at Trilegal
Yes, in matters pertaining to sexual harassment, the SH Act expressly stipulates that the IC holds the powers of a civil court to summon any person to be examined as a witness. In misconduct cases, the investigating authority can ask employees to appear and testify before it as witnesses and internal policies should have provisions for this. As a result, employees are duty-bound to fairly and honestly participate in any investigative or disciplinary proceedings relating to the workplace, including offering truthful evidence and testimony on matters they may have observed or experienced as an employee of the organisation. While employees don't have any express statutory protections when acting as witnesses, any such policy should be balanced and include necessary safeguards, such as assuring employees that any retaliation against them will not be tolerated and that the details of their participation will only be shared on a need-to-know basis.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Due to the employee's duty of loyalty towards the employer and the employer's right to give instructions to its employees, employees generally must take part in an ongoing investigation and comply with any summons for questioning if the employer demands this (article 321d, Swiss Code of Obligations). If the employees refuse to participate, they generally are in breach of their statutory duties, which may lead to measures such as a termination of employment.
The question of whether employees may refuse to testify if they would have to incriminate themselves is disputed in legal doctrine.[1] However, according to legal doctrine, a right to refuse to testify exists if criminal conduct regarding the questioned employee or a relative (article 168 et seq, Swiss Criminal Procedure Code) is involved, and it cannot be ruled out that the investigation documentation may later end up with the prosecuting authorities (ie, where employees have a right to refuse to testify in criminal proceedings, they cannot be forced to incriminate themselves by answering questions in an internal investigation).[2]
[1] Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, published on hrtoday.ch, last visited on 17 June 2022.
[2] Same opinion: Nicolas Facincani/Reto Sutter, Interne Untersuchungen: Rechte und Pflichten von Arbeitgebern und Angestellten, published on hrtoday.ch, last visited on 17 June 2022.