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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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?
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Under Hong Kong law, the employee has an implied duty to obey lawful instructions from his or her employer and to serve the employer with fidelity and good faith during the term of his or her employment. A lawful instruction from an employer may include a reasonable request for the employee to participate and provide information in the workplace investigation. If the employee refuses to comply with such instruction or is obstructive or provides untrue or misleading information, it could constitute a ground for summary dismissal under the EO and at common law.
That said, in general terms, an employer should not compel any employee to testify against a co-worker, particularly if such a co-worker is a senior colleague, as evidence provided under compulsion may not be helpful to the investigation.
Employees who act as witnesses must be treated as per their contractual and statutory rights, including the right against self-incrimination. If the investigation involves allegations of discrimination on the ground of sex, race or disability, the employer should ensure that the witnesses will not be victimised or treated less favourably than other employees.
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.
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?
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
Unless the employment contract or the relevant internal policies specify otherwise, there is no automatic right under Hong Kong law for a works council or trade union to be informed or involved in a workplace investigation.
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.
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?
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
There is no legal requirement in Hong Kong on this. However, since the investigation records will likely contain personal data, employers should be mindful of the requirement under the PDPO that personal data should not be kept for longer than necessary.[1]
According to the Code of Practice on Human Resources Management published by the Privacy Commissioner for Personal Data, generally, employment data about an employee can be kept for the entire duration of his or her employment, plus a recommended period of no more than seven years after the employee leaves employment unless there is a subsisting reason that justifies a longer retention period. A longer retention period may be justified where there is ongoing litigation or a parallel investigation. Even where it is deemed necessary to retain the outcome of the investigation concerning a departed employee, the employer should ensure that other personal data on the employee’s record (that is unrelated to the purpose of retention) are erased after the expiry of the recommended retention period.
[1] DPP2 (in Sch. 1) and PDPO section 26.
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.