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?
France
France
- at Bredin Prat
- at Bredin Prat
No specific rules directly govern a workplace investigation in the event of employee misconduct. However, several rules, both legal and administrative, affect the conduct of such an investigation. In addition, codes of conduct, internal regulations or guidelines may also exist within companies.
A new law (No. 2022-401) came into effect on 1 September 2022 and constitutes one of the cornerstones for future regulation of workplace investigations. This law transposes into French law the European directive relating to whistleblower protection. It does not, however, constitute a revolution, as a previous French law dated 9 December 2016 (the so-called Sapin 2 Law) already provided the whistleblower with a specific status and protection. These laws are fundamental when considering an internal investigation as the rules protecting the whistleblower and requiring the establishment of an internal whistleblowing channel (eg, a dedicated email or hotline) affect the degree of flexibility available to companies in conducting the investigation.
A new decree has been adopted (No. 2022-1284), dated 3 October 2022, for application of these new provisions. This decree sets out several obligations relating to the internal whistleblowing reporting process. The reporting channel will necessarily contribute to shape the internal investigation triggered by situations which have been reported by that channel. Companies subject to this decree may define the reporting procedure using the supporting tool of their choice (company collective agreement, internal memorandum, etc.), as long as the employee representative bodies are duly consulted on the matter. The decree also specifies that an acknowledgement of receipt of the alert must be provided to the author of the alert in writing within seven days from the company receiving the alert. The author of the alert must also be informed in writing, within a reasonable period not exceeding three months from acknowledgement of receipt of the alert, of the measures envisaged or taken to assess the accuracy of the allegations and, where appropriate, to remedy the situation which had been reported, as well as the reasons for these measures and, finally, the closure of the case.
More generally, not only do all the “pure” labour law rules relating to the protection of the human rights of employees need to be complied with (right to privacy, data protection under the GDPR, etc), but also the disciplinary rules and regulations that protect employees from unfounded sanctions imposed by their employer. For example, an employer can only sanction an employee's misconduct if the disciplinary procedure begins within two months of when the misconduct was committed or when the employer becomes aware of it. In this respect, an internal investigation can be necessary for the employer to obtain full knowledge of the facts alleged to have been committed by the employee. It is nonetheless recommended that the internal investigation be completed within these two months to avoid the risk of the disciplinary action being time-barred.
Administrative rules produced by the French anti-corruption agency should also be taken into consideration (good practice, guidelines and recommendations relating to senior management’s commitment to implement anti-corruption measures, corruption risk mapping, corruption risk management measures and procedures), as well as the guidelines produced by the French Ministry of Employment relating to the prevention of sexual harassment and gender-based violence or the recommendations of the Human Rights Defender, which is a French special institution aimed at protecting fundamental rights.
When the investigation in question concerns moral or sexual harassment or violence in the workplace, the national interprofessional agreement of 26 March 2010 should be <referred to. This text stipulates that in the event of an investigation procedure, it should be based on, but not limited to, the following guiding principles:
- it is in everyone's interest to act with the discretion necessary to protect everyone's dignity and privacy;
- no information, unless it is anonymized, should be divulged to parties not involved in the case in question;
- complaints must be investigated and dealt with without delay;
- all parties involved must be listened to impartially and treated fairly;
- complaints must be supported by detailed information;
- deliberate false accusations must not be tolerated, and may result in disciplinary action;
- external assistance may be useful, notably from occupational health services.
Many are calling for the adoption of legislative rules governing such investigations, and their coordination with general whistleblower protection measures.
Finally, a company must take its own rules and regulations into account. Every company with at least 50 employees has the legal obligation to draw up internal rules and regulations, which notably set out the disciplinary sanctions applicable to employees, as well as a reminder of certain employees' rights.
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.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The Labour Protection Act B.E. 2541 (1998) (LPA) is the key legislation governing the relationship between employer and employee in Thailand. The LPA set out a minimum standard for the protection of employees’ rights, as well as a mechanism for suspension from work for an investigation.
The LPA requires any employer having ten or more employees to prepare work rules in the Thai language and the work rules require an employer to prescribe a procedure for the submission of grievances that would normally include the process for investigations in the workplace. Therefore, the work rules are the main guidance and policy that govern a workplace investigation. In some cases, an employer may have a whistleblowing policy allowing whistle-blowers to submit complaints of illegal or improper activities to the employer. The whistleblowing policy will also prescribe the procedures for investigating in workplace reflecting the complaints submitted by whistle-blowers.
02. How is a workplace investigation usually commenced?
02. How is a workplace investigation usually commenced?
France
France
- at Bredin Prat
- at Bredin Prat
When a report of wrongdoing is brought to the employer's attention, whether through a whistleblower or another channel, and an internal investigation is expected, it may be either mandatory or optional, depending on the facts of the alleged wrongdoing.
The investigation will be mandatory when the alleged wrongdoing relates to an ethical issue according to anti-corruption regulations, the employer’s duty of due diligence regarding, for example, human rights or environmental matters, or where the works council has issued an alert relating to a “serious and imminent danger” (or to “fundamental human rights”), but also whenever it relates to the employer's obligation to ensure employee safety (eg, moral or sexual harassment).
If the investigation is not mandatory, it is up to the employer to decide whether or not to carry out the investigation. Several key questions can help the employer determine whether or not it is appropriate to carry out an investigation, such as:
- What are the benefits of doing nothing? The company will have to draw up a list of the pros and cons of an investigation, bearing in mind that in some cases a poorly conducted investigation could make the situation worse;
- What is the priority (eg, obtaining or securing evidence, or correcting the irregularity)?
- What rules or codes of ethics must the company comply with?
- Should external legal counsel only advise the company or should they play a major role in the investigation process by becoming an investigator?
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Internal investigations are usually initiated after reports about possible violations of the employer's code of conduct, applicable laws or regulations have been submitted by employees to their superiors, the human resources department or designated internal reporting systems such as hotlines (including whistleblowing hotlines).
For an internal investigation to be initiated, there must be a reasonable suspicion (grounds).[1] If no such grounds exist, the employer must ask the informant for further or more specific information. If no grounds for reasonable suspicion exists, the case must be closed. If grounds for reasonable suspicion exist, the appropriate investigative steps can be initiated by a formal investigation request from the company management.[2]
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Usually, a complainant submitting a grievance to the company would be a trigger for proceeding with a workplace investigation. The LPA does not specify when a workplace investigation should commence but it is subject to the employer’s work rules and regulations, including the whistleblowing policy, as the investigation usually commences after an employee or a whistle-blower has filed a complaint to the employer. In some cases, there might be a whistleblower and the start of the workplace investigation would be subject to the whistleblowing policy and the employer’s discretion. Also, if a questionable transaction or activity is detected, fiscal audits may be the source that triggers a voluntary workplace investigation.
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
France
France
- at Bredin Prat
- at Bredin Prat
An employee may be suspended or relocated during a workplace investigation by:
- suspending the employee as a precautionary measure (eg, pending a confirmation of dismissal);
- temporarily assigning the employee to another site; or
- exempting the employee from having to work while continuing to pay them their salary.
The employee can be suspended as a precautionary measure, pending confirmation of dismissal, but this implies that disciplinary proceedings have already begun and that the investigation is therefore at a relatively advanced stage and that there is sufficient evidence to suggest the need for disciplinary action. It should be made clear to the employee that the suspension is a provisional measure (in the absence of specifying this, the suspension could be interpreted as a disciplinary layoff constituting a sanction and, in some jurisdictions, as depriving the employer of the possibility of dismissing the employee for the same facts).
Temporary reassignment can also be considered. However, this contractual change must not apply for long and the measure taken must be temporary. The employer must act promptly – the measure is only valid for as long as the investigation continues. Failing this, and because of the absence of concurrent disciplinary proceedings, there is considerable risk that the temporary reassignment may be reclassified by a judge as an illegal modification of the employment contract or as a disciplinary sanction preventing the employee from subsequently being dismissed.
Finally, paid exemption from work is also possible and consists of temporarily suspending, by mutual agreement, the obligation of the employer to provide work for the employee and the employee’s obligation to work, without affecting their remuneration. Such a measure must generally be taken with the consent of the employee, because it implies a suspension (and therefore a modification) of the employment contract. This measure may be useful in temporarily removing an employee with whom the employer maintains a good relationship. This may be an employee who is or feels they are a victim of harassment, especially when the employee is not on sick leave.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
It is possible to suspend an employee during a workplace investigation.[1] While there are no limits on duration, the employee will remain entitled to full pay during this time.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 181.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
While an employee is being investigated by the employer, the LPA permits the employer to suspend that employee from work for the duration of the investigation, provided that the suspension can only be made when permitted by the work rules or an agreement related to the conditions of employment. Also, a suspension order must be made in writing and specify the offence and period of the suspension, which may not exceed seven days. Note that the employer must give a written suspension order in advance to the employee before the work suspension.
As aforementioned, the LPA only permits the employer to suspend the employee under investigation from work only for seven days. During the interim period of the suspension, the employer must pay the employee at the rate indicated in the work rules or the agreement reached between the employer and the employee, which must not be less than half of the employee's wages for a working day before his or her suspension. If the employer determines that the employee subject to investigation is not guilty following the outcome, the employer must compensate the employee for outstanding wages from the date of suspension with 15% interest per annum.
In some complicated cases, a workplace investigation does not conclude within seven days, and, in which case the employer should consult with a legal advisor.
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
France
France
- at Bredin Prat
- at Bredin Prat
In determining who is to conduct a workplace investigation, the main objective is to ensure that the team is independent or at least that it is perceived as being independent. The key people in the investigation team can be identified in a pre-established procedure. It is good practice to give decision-makers the possibility to set up, on a case-by-case basis, the team most appropriate to the situation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The examinations can be carried out internally by designated internal employees, by external specialists, or by a combination thereof. The addition of external advisors is particularly recommended if the allegations are against an employee of a high hierarchical level[1], if the allegations concerned are quite substantive and, in any case, where an increased degree of independence is sought.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 18.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The employer should conduct a workplace investigation on its own; however, an outside firm experienced in interviewing witnesses and assessing the credibility of evidence may also be appointed to assist with the workplace investigation.
There is no minimum qualification or criteria provided under Thai laws. It is worth noting that anyone who has been accused of misconduct or potentially has a conflict of interest should be excluded from any role in the investigation. This is to avoid a challenge from the subject employee that the investigation was not conducted fairly.
05. Can the employee under investigation bring legal action to stop the investigation?
05. Can the employee under investigation bring legal action to stop the investigation?
France
France
- at Bredin Prat
- at Bredin Prat
An internal investigation is not a police enquiry or a judicial instruction; there is no legal provision enabling an employee to stop the investigation. At the same time, there is no legal provision enabling the employer to force an employee to be interviewed. Interviewing an employee within the context of an internal investigation is also not a disciplinary matter. Therefore, the employee has no right to be assisted by another employee or an employee representative. The employee could, however, lawfully request the presence of their lawyer, especially if the company’s lawyer is part of the investigation team.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The accused could theoretically request a court to stop the investigation, for instance, by arguing that there is no reason for the investigation and that the investigation infringes the employee's personality rights. However, if the employer can prove that there were grounds for reasonable suspicion and is conducting the investigation properly, it is unlikely that such a request would be successful.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
There is no mechanism in place to take legal action to halt an investigation. The investigation is an internal process of the employer.
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?
France
France
- at Bredin Prat
- at Bredin Prat
Co-workers can spontaneously act as witnesses and provide statements to superiors before, during or after the interviews. Co-workers can also be interviewed as witnesses at the investigator’s request, although they are not under any obligation to answer the questions and they cannot be compelled to do so. The investigators have an absolute obligation of discretion during the investigation and cannot reveal any details of the information gathered.
Certain employees may benefit from whistleblower status, which implies that they may be exempt from potential criminal and civil liability relating to their report or testimony and they are protected from any retaliatory measures from the employer. “Facilitators” who helped the whistleblower and the individuals connected with the whistleblower and risk retaliatory measures by testifying as a witness may also benefit from this status, as of 1 September 2022.
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.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Normally, the work rules prescribe requirements for cooperation with investigations. An employer may instruct co-workers to give statements as witnesses as this would be a fair and legitimate order of the employer, because investigations are conducted to maintain a good working environment.
Witness protection measures in a workplace can vary as no minimum standard has been set and they are generally subject to work rules and regulations. However, some legislation, which may not relate to a workplace investigation conducted by an employer, also protects the witnesses who are helping authorities investigate violations under the relevant acts. For example, the Labor Relation Act B.E. 2518 (1975) prohibits an employer from terminating an employee or conducting any action that may result in the employee being unable to work because of filing a complaint or being a witness for the authorities, or providing information on issues related to labour protection laws to the authorities.
The employer may have a policy of non-retaliation for the protection of witnesses who have given statements and evidence for a workplace investigation.
07. What data protection or other regulations apply when gathering physical evidence?
07. What data protection or other regulations apply when gathering physical evidence?
France
France
- at Bredin Prat
- at Bredin Prat
GDPR principles fully apply to data gathering, as well as case law protecting the right to respect one’s private life and the secret of correspondence.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The Swiss Federal Act on Data Protection applies to the gathering of evidence, in particular such collection must be lawful, transparent, reasonable and in good faith, and data security must be preserved.[1]
It can be derived from the duty to disclose and hand over benefits received and work produced (article 321b, Swiss Code of Obligations) as they belong to the employer.[2] The employer is, therefore, generally entitled to collect and process data connected with the end product of any work completely by an employee and associated with their business. However, it is prohibited by the Swiss Criminal Code to open a sealed document or consignment to gain knowledge of its contents without being authorised to do so (article 179 et seq, Swiss Criminal Code). Anyone who disseminates or makes use of information of which he or she has obtained knowledge by opening a sealed document or mailing not intended for him or her may become criminally liable (article 179 paragraph 1, Swiss Criminal Code).
It is advisable to state in internal regulations that the workplace might be searched as part of an internal investigation and in compliance with all applicable data protection rules if this is necessary as part of the investigation.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The basic premise is that all evidence is admissible unless it violates the law of admissibility and production of evidence, which may vary depending on the jurisdiction. In a criminal court, for example, evidence gathered in violation of the fruit of the poisonous tree doctrine would be typically inadmissible, yet in a civil court, this doctrine would not be an exclusionary rule.
The Personal Data Protection Act, BE 2562 (2019) (PDPA), which is the main data protection law in Thailand, applies when collecting, using, and disclosing pieces of evidence containing the personal data of employees. If the investigation requires sensitive information of the employee under investigation, for example, race, ethnic origin, political opinion, religious or philosophical beliefs, sexual behavior, criminal records, health data, disability, genetic data and biometric data, consent from the employee should be obtained.
08. Can the employer search employees’ possessions or files as part of an investigation?
08. Can the employer search employees’ possessions or files as part of an investigation?
France
France
- at Bredin Prat
- at Bredin Prat
In internal investigations, the fundamental rights and freedoms of employees are at stake, including the right to privacy, respect for the privacy of home life and correspondence, freedom of expression, and the obligation of loyalty in searching for evidence.
In principle, work emails and files can be reviewed, even without the employee's consent, prior knowledge or warning. This includes: work email accounts; files stored on a work computer or a USB key connected to a work computer; and SMS messages and files stored on a work mobile phone and documents stored in the workplace unless they are labelled as “personal”. On the other hand, it is not permissible for an employer (or an investigator) to review “personal” emails and files, such as documents or emails identified as “personal” by the employee, or personal email accounts (Gmail, Yahoo, etc), even if accessed from a work computer.
There are certain exceptions to the above principle. An employer is allowed to check “personal” emails or data in any of the following cases:
- if the employee is present during the review;
- if the employee is absent, but was duly notified and invited to be present;
- if there is a particularly serious “specific risk or event”;
- if the review is authorised by a judge (this means having to prove a legitimate reason justifying not informing the employee).
When documents or emails are not marked as “personal” but contain information of a personal nature, the employer may open and review the data but may not use such documents or emails to justify applying disciplinary measures to the employee or use such documents or emails as evidence in court if they indeed relate to the employee’s private life.
Special attention must be given to employee representatives who must be entirely free to carry out their duties.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The basic rule is that the employer may not search private data during internal investigations.
If there is a strong suspicion of criminal conduct on the part of the employee and a sufficiently strong justification exists, a search of private data may be justified.[1] The factual connection with the employment relationship is given, for example, in the case of a criminal act committed during working hours or using workplace infrastructure.[2]
[1] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168.
[2] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168 et seq.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Electronic information created during employment would generally be owned by the employer and would be the employer’s assets. If an employee is given a computer or laptop to use for work, the employer has the right to log into that device and take any data that is stored therein, provided that the data does not contain sensitive information of that employee and PDPA requirements are met.
To avoid any potential issues regarding physical data such as documents on the employee’s desk, it is advisable to search those areas with the subject employee to show good faith. In practice, the employee normally agrees to search those areas with the employer, or allows the employer to search alone.
09. What additional considerations apply when the investigation involves whistleblowing?
09. What additional considerations apply when the investigation involves whistleblowing?
France
France
- at Bredin Prat
- at Bredin Prat
Evidence obtained in the context of an investigation must specify who provided it and the date it was provided. No retaliatory measures may be taken against the whistleblower for the act of whistleblowing.
In certain cases, the whistleblower report must be forwarded to the judicial authorities (eg, when there is an obligation to assist persons in imminent danger, for serious offences or a disclosure that a vulnerable person is in danger (ie, minors under 15 or a person who is unable to protect themselves)).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
If an employee complains to his or her superiors about grievances or misconduct in the workplace and is subsequently dismissed, this may constitute an unlawful termination (article 336, Swiss Code of Obligations). However, the prerequisite for this is that the employee behaves in good faith, which is not the case if he or she is (partly) responsible for the grievance.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
It is down to the employer’s discretion and subject to the whistleblowing policy (if any) to commence the investigation resulting from a complaint from a whistleblower. Whistleblowers and those who cooperate with an investigation should be protected. Normally the employer would not try to identify the whistleblowers. Also, it is best not to reveal the identity of the witness or the source of information; otherwise, they may feel uncomfortable giving information or raising their concerns next time. Any allegations of retaliation that surface during the investigation should be treated as a new report of possible misconduct that could be subject to additional investigation.
10. What confidentiality obligations apply during an investigation?
10. What confidentiality obligations apply during an investigation?
France
France
- at Bredin Prat
- at Bredin Prat
Interviewers, investigators, interviewees or any others involved in the investigation are often bound by a reinforced confidentiality obligation, particularly when the internal investigation is triggered by a whistleblower alert. In addition, every person that comes to know of the investigation, facts or people involved is bound by an obligation of discretion. Furthermore, investigators should specifically be trained for interviews and be reminded of their obligations relating to the investigation.
The investigators will need to determine the order of the tasks to be carried out in the investigation, as this will have a significant impact on confidentiality management. Should they start with the hearings or a review of documents? The answer may depend on the subject matter of the investigation. It is advisable to first review the documentation before organising interviews, particularly to avoid the destruction of certain documents by employees acting in bad faith or by those wishing to erase the traces of alleged wrongdoing. Sometimes, however, it is possible to start with the interviews, especially in the case of harassment, as there may be no documents to review. If the decision is taken to conduct the documentation review after the interviews, it could be useful to ask the employees involved to sign a document stating that they must preserve and retain documents, meaning that if they delete or destroy documents, they would be acting against the company and in breach of the law.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Besides the employee's duty of performance (article 319, Swiss Code of Obligations), the employment relationship is defined by the employer's duty of care (article 328, Swiss Code of Obligations) and the employee's duty of loyalty (article 321a, Swiss Code of Obligations). Ancillary duties can be derived from the two duties, which are of importance for the confidentiality of an internal investigation.[1]
In principle, the employer must respect and protect the personality (including confidentiality and privacy) and integrity of the employee (article 328 paragraph 1, Swiss Code of Obligations) and take appropriate measures to protect the employee. Because of the danger of pre-judgment or damage to reputation as well as other adverse consequences, the employer must conduct an internal investigation discreetly and objectively. The limits of the duty of care are found in the legitimate self-interest of the employer.[2]
In return for the employer's duty of care, employees must comply with their duty of loyalty and safeguard the employer's legitimate interests. In connection with an internal investigation, employees must therefore keep the conduct of an investigation confidential. Additionally, employees must keep confidential and not disclose to any third party any facts that they have acquired in the course of the employment relationship, and which are neither obvious nor publicly accessible.[3]
[1] Wolfgang Portmann/Roger Rudolph, BSK OR, Art. 328 N 1 et seq.
[2]Claudia Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 202.
[3] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 133.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Unless the investigation is handled by a qualified professional (eg, attorney or auditor) where certain privileges apply, confidentiality obligations are generally subject to the contractual arrangement between the parties involved in the investigation. The employers need to inform any persons, including the investigators, to respect confidentiality obligations because a leak of the information gathered from the investigations could cause damage to relevant parties.
11. What information must the employee under investigation be given about the allegations against them?
11. What information must the employee under investigation be given about the allegations against them?
France
France
- at Bredin Prat
- at Bredin Prat
According to the French data protection authority, the employee under investigation must be informed of the name of the person in charge of the investigation, the alleged facts that have led to the whistleblowing alert and their rights to access and rectify data collected about them. This information must be given as soon as the data collection starts, before the interviews, as per GDPR principles.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As a result of the employer's duty of care (article 328, Swiss Code of Obligations), employees under investigation have certain procedural rights. These include, in principle, the right of the accused to be heard. In this context, the accused has the right to be informed at the beginning of the questioning about the subject of the investigation and at least the main allegations and they must be allowed to share their view and provide exculpatory evidence.[1] The employer, on the other hand, is not obliged to provide the employee with existing evidence, documents, etc, before the start of the questioning.[2]
Covert investigations in which employees are involved in informal or even private conversations to induce them to provide statements are not compatible with the data-processing principles of good faith and the requirement of recognisability, according to article 4 of the Swiss Federal Act on Data Protection.[3]
Also, rights to information arise from the Swiss Federal Act on Data Protection. In principle, the right to information (article 8, Swiss Federal Act on Data Protection) is linked to a corresponding request for information by the concerned person and the existence of data collection within the meaning of article 3 (lit. g), Swiss Federal Act on Data Protection. Insofar as the documents from the internal investigation recognisably relate to a specific person, there is in principle a right to information concerning these documents. Subject to certain conditions, the right to information may be denied, restricted or postponed by law (article 9 paragraph 1, Swiss Federal Act on Data Protection). For example, such documents and reports may also affect the confidentiality and protection interests of third parties, such as other employees. Based on the employer's duty of care (article 328, Swiss Code of Obligations), the employer is required to protect them by taking appropriate measures (eg, by making appropriate redactions before handing out copies of the respective documents (article 9 paragraph 1 (lit. b), Swiss Federal Act on Data Protection)).[4] Furthermore, the employer may refuse, restrict or defer the provision of information where the company’s interests override the employee’s, and not disclose personal data to third parties (article 9 paragraph 4, Swiss Federal Act on Data Protection). The right to information is also not subject to the statute of limitations, and individuals may waive their right to information in advance (article 8 paragraph 6, Swiss Federal Act on Data Protection). If there are corresponding requests, the employer must generally grant access, or provide a substantiated decision on the restriction of the right of access, within 30 days (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 paragraph 4, Ordinance to the Federal Act on Data Protection).
[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[2] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
[4] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The subject employee(s) should be informed of the details of the allegations, such as the details of wrongdoing or violations, made against them. This creates a fair opportunity for them to clarify themselves and defend against such allegations properly. Also, if there is any evidence that needs clarification from the employee, it should be shown to the employee.
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
France
France
- at Bredin Prat
- at Bredin Prat
The identity of the complainant must be kept confidential and cannot be disclosed. There are two exceptions: if the complainant consents to the disclosure; or if the employer is asked for this information by the judicial authorities.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As mentioned under Question 10, the employer’s duty of care (article 328, Swiss Code of Obligations) also entails the employer’s duty to respect and protect the personality (including confidentiality and privacy) and integrity of employees (article 328 paragraph 1, Swiss Code of Obligations) and to take appropriate measures to protect them.
However, in combination with the right to be heard and the right to be informed regarding an investigation, the accused also has the right that incriminating evidence is presented to them throughout the investigation and that they can comment on it. For instance, this right includes disclosure of the persons accusing them and their concrete statements. Anonymisation or redaction of such statements is permissible if the interests of the persons incriminating the accused or the interests of the employer override the accused’ interests to be presented with the relevant documents or statements (see question 11; see also article 9 paragraphs 1 and 4, Swiss Federal Act on Data Protection). However, a careful assessment of interests is required, and these must be limited to what is necessary. In principle, a person accusing another person must take responsibility for their information and accept criticism from the person implicated by the information provided.[1]
[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
It is generally possible to keep the identity of the complainant, witnesses, or information sources confidential. There is no mandatory rule to disclose the identity of a complainant, witnesses, or sources of information. If the complainant, witnesses, or sources of information for the investigation know that their identities would not be disclosed, they will be more confident in cooperating with and supporting the investigations.
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
France
France
- at Bredin Prat
- at Bredin Prat
Most of the time, the legal protection afforded by the legally prescribed confidentiality obligation that applies to whistleblowing is sufficient. This is all the more so given every person involved is bound by an obligation of discretion. However, there is no legal obstacle to the creation of an NDA between the employer and the people involved.
NDAs setting out a strict and reinforced obligation of confidentiality and discretion during the investigation should be signed by any external parties involved (eg, translation agency, IT expert) or when the internal investigation is outside the scope of whistleblowing regulations.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In addition to the above-mentioned statutory confidentiality obligations, separate non-disclosure agreements can be signed. In an internal investigation, the employee should be expressly instructed to maintain confidentiality.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Non-disclosure agreements can be made between an employer and employees who are involved in an investigation. This may include investigators and witnesses, apart from the employee under investigation. This minimises the risk of information being leaked, which can affect all parties related to the workplace investigation. However, an NDA is not absolute means to prevent the disclosure of confidential information, as the court has the authority to compel disclosure.
14. When does privilege attach to investigation materials?
14. When does privilege attach to investigation materials?
France
France
- at Bredin Prat
- at Bredin Prat
Privilege does not generally apply to internal investigation materials as the investigation does not constitute a relationship between a lawyer and their client, and even less so a judicial investigation. However, if a lawyer is appointed as an investigator, privilege may apply to materials exchanged between the lawyer and that client.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As outlined above, all employees generally have the right to know whether and what personal data is being or has been processed about them (article 8 paragraph 1, Swiss Federal Act on Data Protection; article 328b, Swiss Code of Obligations).
The employer may refuse, restrict or postpone the disclosure or inspection of internal investigation documents if a legal statute so provides, if such action is necessary because of overriding third-party interests (article 9 paragraph 1, Swiss Federal Act on Data Protection) or if the request for information is manifestly unfounded or malicious. Furthermore, a restriction is possible if overriding the self-interests of the responsible company requires such a measure and it also does not disclose the personal data to third parties. The employer or responsible party must justify its decision (article 9 paragraph 5, Swiss Federal Act on Data Protection).[1]
The scope of the disclosure of information must, therefore, be determined by carefully weighing the interests of all parties involved in the internal investigation.
[1] Claudia M. Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 284 et seq.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Client-attorney privilege between qualified attorneys and the client (ie, an employer) begins once information is made available to the attorney, regardless of the form it takes.
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?
France
France
- at Bredin Prat
- at Bredin Prat
The employee under investigation has the right to be assisted by a lawyer during the interviews and, if the employee chooses to be so, the lawyer must also always be present. The employee may not, however, be accompanied by anyone other than a legal representative (ie, another employee cannot attend the interview).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In the case of an employee involved in an internal investigation, a distinction must be made as to whether the employee is acting purely as an informant or whether there are conflicting interests between the company and the employee involved. If the employee is acting purely as an informant, the employee has, in principle, no right to be accompanied by their own legal representative.[1]
However, if there are conflicting interests between the company and the employee involved, when the employee is accused of any misconduct, the employee must be able to be accompanied by their own legal representative. For example, if the employee's conduct might potentially constitute a criminal offence, the involvement of a legal representative must be permitted.[2] Failure to allow an accused person to be accompanied by a legal representative during an internal investigation, even though the facts in question are relevant to criminal law, raises the question of the admissibility of statements made in a subsequent criminal proceeding. The principles of the Swiss Criminal Procedure Code cannot be undermined by alternatively collecting evidence in civil proceedings and thus circumventing the stricter rules applicable in criminal proceedings.[3]
In general, it is advisable to allow the involvement of a legal representative to increase the willingness of the employee involved to cooperate.
[1] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.
[2] Simona Wantz/Sara Licci, Arbeitsvertragliche Rechte und Pflichten bei internen Untersuchungen, in: Jusletter 18 February 2019, N 59.
[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 392; Niklaus Ruckstuhl, BSK-StPO, Art. 158 StPO N 36.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Unless the work regulations provide otherwise, an employee has the right to request legal representation during an investigation. If legal representation is requested, it is an opportunity for the employer to confirm and verify that an investigation is being conducted fairly, as the employee under investigation can bring his or her lawyer to attend the investigation.
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?
France
France
- at Bredin Prat
- at Bredin Prat
Neither the works council nor the trade unions have any right to be informed or involved in the investigation. It is the employer who is responsible for carrying out the investigation. However, when the investigation is triggered due to a works council issuing an alert relating in particular to a “serious and imminent danger”, one member of the works council must be involved in the investigation process.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In general, works councils and trade unions are not very common in Switzerland and there are no statutory rules that would provide a works council or trade union a right to be informed or involved in an ongoing internal investigation. However, respective obligations might be foreseen in an applicable collective bargaining agreement, internal regulations or similar.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Thai labor laws do not require a workplace investigation to involve participation from trade unions or labour unions. However, it is possible for labour unions established under the Labor Relation Act BE. 2518 (1975) to submit a demand for a collective bargaining agreement (CBA) with employers to get a seat at the table. There was a case where a management union made a CBA with the employer wherein the president of the management union would be involved in any investigation of any manager, who is a union member, under investigation. In that case, the employer must comply with the CBA by informing the president and allowing the president to participate in the investigations.
17. What other support can employees involved in the investigation be given?
17. What other support can employees involved in the investigation be given?
France
France
- at Bredin Prat
- at Bredin Prat
Apart from being informed of any facts and data concerning them being collected during the investigation, employees involved in the investigation do not have any specific rights. Some companies choose to use external firms specializing in psychosocial risk management, not only to conduct internal investigations, but also to provide additional psychological support for their employees, as part of the employer's safety obligation.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The employer does not generally need to provide specific support for employees that are subject to an internal investigation. The employer may, however, allow concerned employees to be accompanied by a trusted third party such as family members or friends.[1] These third parties will need to sign separate non-disclosure agreements before being involved in the internal investigation.
In addition, a company may appoint a so-called lawyer of confidence who has been approved by the employer and is thus subject to professional secrecy. This lawyer will not be involved in the internal investigation but may look after the concerned employees and give them confidential advice as well as inform them about their rights and obligations arising from the employment relationship.[2]
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The employees may then file a complaint with the labour inspection officer of the Labour Protection and Welfare Department to investigate the situation if they view that the conduct of the employer in the investigation violates the LPA. For example, if the employer issues a written order for suspending an employee for more than seven days. The labour inspection officer may issue an order requesting compliance, where failure to comply with such an order would result in a criminal penalty.
19. What if the employee under investigation raises a grievance during the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
France
France
- at Bredin Prat
- at Bredin Prat
The grievance may also have to be investigated (eg, moral/sexual harassment reported by an employee under investigation).
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
In the context of private internal investigations, grievances initially raised by the employee do not usually have an impact on the investigation.
However, if the employer terminates the employment contract due to a justified legal complaint raised by an employee, a court might consider the termination to be abusive and award the employee compensation in an amount to be determined by the court but not exceeding six months’ pay for the employee (article 336 paragraph 1 (lit. b) and article 337c paragraph 3, Swiss Code of Obligations). Furthermore, a termination by the employer may be challenged if it takes place without good cause following a complaint of discrimination by the employee to a superior or the initiation of proceedings before a conciliation board or a court by the employee (article 10, Federal Act on Gender Equality).
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The investigator should guide the employee who has raised the grievance to properly raise their concerns through the grievance protocols or whistleblowing policy (if any). It is acceptable to preliminarily hear their concerns, but the investigation should be initiated separately and subject to the employer’s discretion.
20. What if the employee under investigation goes off sick during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
France
France
- at Bredin Prat
- at Bredin Prat
The investigation will likely be able to continue with the other employees and, as soon as the employee under investigation returns from sick leave, they will be able to be interviewed.
However, as disciplinary sanctions are time-barred after two months from the moment the misconduct was committed or from when the employer becomes aware of it, if the sick leave lasts for the whole of that period, the investigation must be conducted anyway. In this instance, the investigator can ask the employee to attend the interview despite being on sick leave or arrange for the interview to take place using other means (eg, conference call). As a last resort, a questionnaire can be sent to the employee, but the pros and cons must be assessed as this is a way of information gathering that carries a certain amount of risk, could be less reliable and is of less probative value.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The time spent on the internal investigation by the employee should be counted as working time[1]. The general statutory and internal company principles on sick leave apply. Sick leave for which the respective employee is not responsible must generally be compensated (article 324a paragraph 1 and article 324b, Swiss Code of Obligations). During certain periods of sick leave (blocking period), the employer may not ordinarily terminate the employment contract; however, immediate termination for cause remains possible.
The duration of the blocking period depends on the employee's seniority, amounting to 30 days in the employee's first year of service, 90 days in the employee's second to ninth year of service and 180 days thereafter (article 336c paragraph 1 (lit. c), Swiss Code of Obligations).
[1] Ullin Streiff/Adrian von Kaenel/Roger Rudolph, Arbeitsvertrag, Praxiskommentar zu Art. 319–362 OR, 7. A. 2012, Art. 328b N 8 OR.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
If the absence is anticipated to be brief, the employer may wait until the employee's return before concluding the investigation. If the employee's absence is expected to be prolonged, the investigator may alter the time of meetings or request that the employee submits a witness statement. The key point would be that all necessary measures should be taken to give the employee a chance to participate.
21. How do you handle a parallel criminal and/or regulatory investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
France
France
- at Bredin Prat
- at Bredin Prat
A criminal investigation always takes precedence over other investigations. However, this does not mean that the internal investigation has to stop. It can and should continue, and the report drawn up upon completion of the investigation could be used by the authorities in the criminal investigation. In some cases, especially when privilege does not apply, police or regulatory authorities may request that the employer share such evidence. However, even when privilege does apply, there is no certainty that the evidence would not have to be communicated to certain authorities.
Some administrative authorities often challenge the application of legal privilege or try to reduce its scope. For example, the French financial markets authority (AMF) regularly puts forward its view of legal privilege, according to which an email where a lawyer is only copied (and is not one of the main recipients) in from one of their clients is not confidential and can therefore be disclosed in proceedings. However, if the AMF investigators impose disclosure of privileged documents, this should result in the annulment of the investigation procedure. By way of exception, legal privilege cannot be invoked against certain other authorities, such as the URSSAF (authority in charge of collecting social security contributions) or the DGCCRF (directorate-general for competition, consumer protection and anti-fraud investigations). Where legal privilege is enforceable, the judge must first determine whether the documents constitute correspondence relating to defence rights and, second, must cancel the seizure of documents that they find to be covered by legal privilege due to the principle of professional secrecy of relations between a lawyer and their client and the rights of defence.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The actions of the employer may carry through to a subsequent state proceeding. First and foremost, any prohibitions on the use of evidence must be considered. Whereas in civil proceedings the interest in establishing the truth must merely prevail for exploitation (article 152 paragraph 2, Swiss Civil Procedure Code), in criminal proceedings, depending on the nature of the unlawful act, there is a risk that the evidence may not be used (see question 27 and article 140 et seq, Swiss Civil Procedure Code).
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Employers are not required to wait until the police or regulatory investigations are finished before conducting their disciplinary investigations, but it is necessary to ensure that such internal proceedings do not compromise the integrity of an investigation or result in misrepresentation or a miscarriage of justice. The level of proof for internal disciplinary action is less than the level of proof for criminal proceedings.
22. What must the employee under investigation be told about the outcome of an investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
France
France
- at Bredin Prat
- at Bredin Prat
The employee under investigation, like the other employees interviewed and the whistleblower, must be informed that the investigation has been completed. However, there is no obligation to provide them with the report and, for reasons of confidentiality, it is very often best not to do so.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
Workplace investigations often result in an investigation report that is intended to serve as the basis for any measures to be taken by the company's decisionmakers.
The employee's right to information based on article 8, Swiss Federal Act on Data Protection also covers the investigation report, provided that the report and the data contained therein relate to the employee.[1] In principle, the employee concerned is entitled to receive a written copy of the entire investigation report free of charge (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 et seq, Ordinance to the Federal Act on Data Protection). Redactions may be made where the interests of the company or third parties so require, but they are the exception and must be kept to a minimum.[2]
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
There is no mandatory information on the outcome of an investigation that must be disclosed to an employee. However, disclosure of the outcome should, at a minimum, include whether an employee did or did not commit a violation. In addition, an employee who has committed a violation should be informed of any disciplinary action, and the grounds for such a decision (such as a violation of the company’s work rules). This enables the employee under investigation to appeal the outcome if it is applicable under the work rules or whistleblowing policy.
24. What next steps are available to the employer?
24. What next steps are available to the employer?
France
France
- at Bredin Prat
- at Bredin Prat
The employer can decide to sanction the person who was under investigation or to close the case. The employer may also need to protect any victims, witnesses and whistleblowers. If, during the investigation, it is discovered that a supplier or other commercial partner is implicated, the relevant contract may be terminated. The employer can take legal action , file a complaint (if the company is a direct victim of a criminal offence) or report the offence to the public prosecutor’s office. The employer must archive the file or ensure its lawful preservation after a certain period.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
If the investigation uncovers misconduct, the question arises as to what steps should be taken. Of course, the severity of the misconduct and the damage caused play a significant role. Furthermore, it must be noted that the cooperation of the employee concerned may be of decisive importance for the outcome of the investigation. The possibilities are numerous, ranging, for example, from preventive measures to criminal complaints.[1]
If individual disciplinary actions are necessary, these may range from warnings to ordinary or immediate termination of employment.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 180 et seq.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Upon completion of the investigation, the employer can decide to take proper disciplinary action against the employee if it is found that the employee committed an offence or violated the work rules. An employer may also file a report with the police if the findings of the investigation amount to a criminal offence.
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
France
France
- at Bredin Prat
- at Bredin Prat
The findings must be submitted to the employer or management, but there is no obligation to disclose them to anybody else. The only exception is if a judicial investigation has been opened. In this case, the entire report must be provided to the authorities if the judge requests this. Normally the investigators only take written notes and there is no audio or video recording, unless the employee consents. Whether or not to make a voluntary disclosure of wrongdoing is a tactical decision for companies. Disclosure may mitigate fines and penalties or even help the employer avoid liability entirely. However, the downsides of disclosure include increased costs, the possibility of a follow-on government investigation and exposure to penalties. Thus, most companies assess their options on a case-by-case basis to determine what steps would be in the best interests of the company.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
The employer is generally not required to disclose the final report, or the data obtained in connection with the investigation. In particular, the employer is not obliged to file a criminal complaint with the police or the public prosecutor's office.
Exceptions may arise, for example, from data protection law (see question 22) or a duty to release records may arise in a subsequent state proceeding.
Data voluntarily submitted in a proceeding in connection with the internal investigation shall be considered private opinion or party assertion.[1] If the company refuses to hand over the documents upon request, coercive measures may be used under certain circumstances.[2]
[1] Oliver Thormann, Sicht der Strafverfolger – Chancen und Risiken, in: Flavio Romerio/Claudio Bazzani (Hrsg.), Interne und regulatorische Untersuchungen, Zürich/Basel/Genf 2016, p. 123.
[2] Oliver Thormann, Sicht der Strafverfolger – Chancen und Risiken, in: Flavio Romerio/Claudio Bazzani (Hrsg.), Interne und regulatorische Untersuchungen, Zürich/Basel/Genf 2016, p. 102 et seq.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The investigation findings should be disclosed to a limited group of persons who are involved in the investigation, and for which the findings are useful. For example, an HR manager who needs to record the findings in the employee’s record, the police if the employer decides to proceed further with a criminal claim, the court if requested by that court, or if there is a court case related to the violations of the employee.
Interview records should be kept confidential and private. There is a risk of disclosure because the information in the records may be beneficial to one but damaging to others. If the interview records are leaked to others who are not involved in the investigation, it may affect the work environment in the workplace and the protection of witnesses.
26. How long should the outcome of the investigation remain on the employee’s record?
26. How long should the outcome of the investigation remain on the employee’s record?
France
France
- at Bredin Prat
- at Bredin Prat
If the outcome of the internal investigation has led to the sanctioning of an employee, this sanction may no longer be invoked to support a new sanction after three years. Moreover, under the GDPR principles, the duration of retention must be proportional to the use of the data. Therefore, the data must be retained only for a period that is “strictly necessary and proportionate”. If the employer wants to keep information about the investigation in the longer term, it is possible to archive the employee’s record even though the employer will no longer be able to use it against the employee after three years.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
From an employment law point of view, there is no statute of limitations on the employee's violations. Based on the specific circumstances (eg, damage incurred, type of violation, basis of trust or the position of the employee), a decision must be made as to the extent to which the outcome should remain on the record.
From a data protection point of view, only data that is in the interest of the employee (eg, to issue a reference letter) may be retained during the employment relationship. In principle, stored data must be deleted after the termination of the employment relationship. Longer retention may be justified if rights are still to be safeguarded or obligations are to be fulfilled in the future (eg, data needed regarding foreseeable legal proceedings, data required to issue a reference letter or data in relation to a non-competition clause).[1]
[1] Wolfgang Portmann/Isabelle Wildhaber, Schweizerisches Arbeitsrecht, 4. Edition, Zurich/St. Gallen 2020, N 473.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
There is no period required by law for keeping the outcome of the investigation on the employee’s record. However, if termination of employment is the outcome of the investigation, an employer should keep details of the investigation for at least 10 years, in line with the prescribed period for an employee to file an unfair dismissal claim against an employer. An employer may use the details of an investigation to defend such a claim. For other disciplinary action, the retention of investigation details on the employee’s record is at the employer’s discretion.
27. What legal exposure could the employer face for errors during the investigation?
27. What legal exposure could the employer face for errors during the investigation?
France
France
- at Bredin Prat
- at Bredin Prat
Within the context of an investigation following a whistleblower alert, any violation of the confidentiality obligation is punishable by two years’ imprisonment and a €30,000 fine.
If the employer fails to comply with its obligation to protect its employees’ safety, the employer will be liable for damages resulting from any failings during the investigation (eg, if sexual harassment is reported and no action is taken by the employer)
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
As there are no specific regulations for internal investigations, the usual legal framework within which the employer must act towards the employee derives from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights.
But, for example, unwarranted surveillance could conceivably result in criminal liability (article 179 et seq, Swiss Criminal Code) for violations of the employee's privacy. Furthermore, errors made by the employer could have an impact on any later criminal proceedings (eg, in the form of prohibitions on the use of evidence).[1]
Evidence obtained unlawfully may only be used in civil proceedings if there is an overriding interest in establishing the truth (article 152 paragraph 2, Swiss Civil Procedure Code). Consequently, in each case, a balance must be struck between the individual’s interest in not using the evidence and in establishing the truth.[2] The question of the admissibility of evidence based on an unlawful invasion of privacy is a sensitive one – admissibility in this case is likely to be accepted only with restraint.[3] Since the parties in civil proceedings do not have any means of coercion at their disposal, it is not necessary, in contrast to criminal proceedings, to examine whether the evidence could also have been obtained by legal means.[4]
Unlawful action by the employer may also have consequences on future criminal proceedings: The prohibitions on exploitation (article 140 et seq, Swiss Criminal Procedure Code) apply a priori only to evidence obtained directly from public authorities. Evidence obtained unlawfully by private persons (ie, the employer) may also be used if it could have been lawfully obtained by the authority and if the interest in establishing the truth outweighs the interest of the individual in not using the evidence.[5] Art. 140 paragraph 1 Swiss Criminal Procure Code remains reserved: Evidence obtained in violation of Art. 140 paragraph 1 Swiss Criminal Procure Code is subject to an absolute ban on the use of evidence (e.g. evidence obtained under the use of torture[6]).[7]
[1] Cf. ATF 139 II 7.
[2] ATF 140 III 6 E. 3
[3] Pascal Grolimund in: Adrian Staehelin/Daniel Staehelin/Pascal Grolimund (editors), Zivilprozessrecht, Zurich/Basel/Geneva 2019, 3rd Edition, §18 N 24a.
[4] Pascal Grolimund in: Adrian Staehelin/Daniel Staehelin/Pascal Grolimund (editors), Zivilprozessrecht, Zurich/Basel/Geneva 2019, 3rd Edition, §18 N 24a.
[5] Decision of the Swiss Federal Court 6B_1241/2016 dated 17. July 2017 consid. 1.2.2; Decision of the Swiss Federal Court 1B_22/2012 dated 11 May 2012 consid. 2.4.4.
[6] Jérôme Benedict/Jean Treccani, CR-CPP Art. 140 N. 5 and Art. 141 N. 3.
[7] Yvan Jeanneret/André Kuhn, Précis de procédure pénale, 2nd Edition, Berne 2018, N 9011.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
The Thai Supreme Court has ruled that the termination of an employee was unfair due to an investigation being conducted contrary to requirements in the company’s work rules. As such, employers may be liable for damages to employees if there are errors made during investigations, or where investigations are not conducted properly.
The Supreme Court has also ruled that in cases of unfair termination, the underlying cause of the termination should be the determining factor, rather than other issues, including investigative procedures.