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.
Choose countries
Choose questions
Choose the questions you would like answering, or choose all for the full picture.
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?
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
As part of an investigation, an employer may search objects or files that are the company’s property (eg, electronic devices given by the employer for business purposes and emails or messages stored on the company’s server) without prior notice and the employee’s consent is not needed. The employer, however, has no right to search an employee’s possessions (eg, a private smartphone) without the employee’s consent.
To avoid arguments as to who a particular object belongs to, employers may specify in internal policies what is to be regarded as a corporate asset and could be subject to a search in a workplace investigation.
Concerning an employee’s possessions, even if he or she consents to a search, it is good practice for the employer to conduct the search in the presence of the employee or an independent third party who can act as a witness to the search. If the employer suspects that a criminal offence has been committed and that a search of the employee’s possessions would reveal evidence, the employer should consider reporting its suspicion to the police, as they have wider legal powers to search.[1]
[1] Usually upon execution of a warrant.
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.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no explicit answer to this question. However, it is important to make a distinction between employees’ possessions and files that are strictly personal and employees’ possessions and files that are found on devices or files provided for company use. For the first category, the employer does not have the right to search employees’ possessions and files. For the latter category though, justifications need to be established, by observing the requirements explained in question 7. Furthermore, the employers must also ensure that employees are fully and explicitly informed in advance of the monitoring operations, either through a provision included in the employment agreement, or in a separate notice or employee policy, the receipt of which should be duly acknowledged by the employee.
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?
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Absent any right conferred by the employment contract or the relevant internal policy, employees do not have a right under Hong Kong law to be accompanied or have legal representation during an investigation meeting or interview. While the employee being investigated is entitled to seek his or her own legal advice during the investigation, employers have discretion on whether to allow the employee to be accompanied or represented by his or her legal adviser in an investigation meeting or interview. That said, to ensure fairness in the process and to avoid unnecessary allegations of undue influence, the employer may consider allowing the employee to have legal representatives present, especially if serious allegations are made against the employee and the outcome of the investigation could have a significant impact on the employee’s future.
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.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
Yes, the employee under investigation has a right to be accompanied by his or her legal representative during the investigation. It is also essential that the employee under investigation is informed about his or her right to have a legal representative.