In Switzerland, internal investigations carried out in the workplace are not governed by any specific legal provisions, nor are they governed by the Swiss Civil Procedure Code (Civil Procedure Code, CPC; RS 272) or the Swiss criminal code of procedure (Criminal Procedure Code, CrimPC;RS 312.0). Rather, the conditions which an internal investigation must meet in order to be conclusive are based on the case law of the Swiss courts. It should be noted that in the context of an internal investigation, other laws such as the Federal Act on Data Protection (Data Protection Act, FADP; 235.1) and its ordinance (Data Protection Ordinance, DPO ; RS 235.11) must be respected, as is the case for any processing of personal data belonging to employees.

An internal investigation can be initiated in several ways. Firstly, an employee who has suffered wrongdoing can complain to their manager or to human resources. They can also use the company helpline, either by name or anonymously if one is available. Employees or third parties, such as external consultants or suppliers, can also report a problem to the employer. It is then up to the employer to take the necessary steps to clarify the facts and determine whether they are serious enough to justify an internal investigation.

It is possible to suspend an employee who is the subject of an internal investigation if there is just cause for doing so, such as, the risk that they will destroy evidence, put pressure on colleagues called to testify, threaten the source of the complaint to withdraw his or her denunciation, etc. Before deciding whether the employee under investigation should be suspended, and for how long, the employer must determine whether this measure is indispensable in view of the circumstances, since he must also protect the personality of the employee under investigation in application of art (328b of the Swiss Code of Obligations, CO; RS 220). This implies not inflicting excessive measures on the employee which could harm their wellbeing, unless it is completely justified. If suspension is ordered, it must not be excessive and must last for the duration of the internal investigation, ie, until the end of the process and a short period following the submission of the investigation report to management. Finally, in the event of suspension, the employee is entitled to payment of their salary.

There is no particular qualification required to conduct an internal investigation in Switzerland. It can be carried out by the company's human resources department or by external consultants, who may or may not be lawyers. It should be noted that only an investigation report drawn up by a lawyer is covered by attorney-client privilege. The advantage of this is that the employer cannot be summoned to produce the report in the course of proceedings, for example, if the employee claims unfair dismissal in civil court and requests production of the report by the employer to demonstrate the unfair nature of the dismissal.

No. The employee under investigation must participate in the internal investigation as part of the duty of loyalty to their employer (Article 321a CO). They have no legal right to stop the internal investigation.

In application of their duty of loyalty to the employer and the employer's right to instruct employees (Article 321d CO), colleagues of the employee under investigation may be obliged to contribute to the internal investigation by testifying at the employer's request. If they refuse, they may be subject to sanctions such as a warning or dismissal. It should be noted, however, that the employer has a duty to protect the wellbeing of its employees (Article 328 CO) and must therefore take all necessary measures to ensure that colleagues who testify are not adversely affected as a result of their testimony. This could be the case, for example, if the employee under investigation were to be cleared at the end of the investigation and took revenge on the colleagues who had testified against them. Employers can therefore ask their employees to testify, while making their statements anonymous so that the employee under investigation cannot identify them.

Pursuant to Article 328b CO, the employer may only process data concerning the employee insofar as this data relates to the employee's ability to perform their duties or is necessary for the performance of the employment contract. In addition, the provisions of the FADP and the DPO are applicable. On this basis, the employer is therefore entitled to gather physical evidence relating to the employment relationship. For data processing outside the scope of the employment relationship, such as the seizure of the employee's private documents when the employer seizes a large number of documents on their computer, or the review of the employee's professional emails, the principles of the FADP and its ordinance must be respected, such as compliance with the principles of good faith, proportionality, purpose, accuracy, lawfulness, transparency, active information of the data subject, and data security.

Pursuant to Article 321b CO, employees must also hand over to their employer everything they receive or produce in the course of their work. As part of an internal investigation, the employer therefore has free access to everything the employee has received or produced during their employment.

The question of access to an employee's e-mails is more delicate. A distinction must be made between private and professional e-mails. First and foremost, employers can have access to their employees’ e-mails when they use professional means of communication for business purposes and if there is a legitimate reason (security, limiting the risk of abuse, work organisation and planning, performance and business control, etc.). The employer may do so in compliance with the principles of data protection, in particular, proportionality and transparency, and within the framework prescribed by Article 26 of the Ordinance 3 relating to the Labour Act (OLT 3; Health Protection – RS 822.113). On the other hand, an employer is not authorised to take cognisance of the content of a private message which must be indicated (mentioned in the subject line “Personal” or “Private”, or storage in a directory entitled “Personal” or “Private”) or recognisable as such (the private nature of a message can also be deduced from the addressing).[1]

Finally, the employer is not authorised to listen to or record private conversations because such surveillance is not necessary for the performance of the employment contract (Article 328b CO), constitutes an infringement of the employee's rights (Article 328 CO; Article 26 OLT 3) and may be subject to criminal prosecution (Article 179bis Swiss Criminal Code – RS 311.0). As for the recording of professional conversations, this is limited to training measures, quality control, etc, and is subject to employee consent.

As a general rule, employers must not access employees' private property or files. Only in the event of a suspected criminal offence, and to prevent or minimise imminent damage, may the employer access property or files belonging to the employee. The measure must be proportionate and have as little impact as possible on the employee's private sphere. A search of the employee's locker, for example, may be carried out in order to safeguard evidence, and should ideally be done in the presence of the employee concerned and a bailiff, who will record the procedure and the results of the search. In all cases, the employer may not take the place of the police and may not lock up or search an employee, on pain of committing a criminal offence.

Whistleblowing is one of the main triggers for internal investigations into offences that would otherwise be difficult to uncover. As whistleblowing is usually limited to certain elements, the company will need to supplement it with an internal investigation. This investigation is all the more important as it demonstrates the company's willingness to act, thus reducing the risk of external whistleblowing. It also provides a better understanding of the irregularities reported, so that action can be taken against them, both in terms of compliance and to protect the personalities of those involved (including the whistleblower), and to ensure a degree of transparency vis-à-vis other company employees and the general public.[1] 

For employees, the obligation to guarantee the confidentiality of internal investigations is based on their duty of performance and loyalty (Article 319 and 321a CO). On the employer's side, Article 328 CO requires protection of the employee's wellbeing, both in the case of the employee under investigation and any colleagues called to testify. The primary aim of confidentiality is to protect the accused employee in the event of their name being cleared at the end of the investigation, so that they can continue working without damaging their reputation. It is also intended to ensure that employees called to testify can speak freely and do not have to fear retaliation for giving evidence.

The information given to the employee under investigation may vary from case to case. For example, the safeguarding of evidence may sometimes justify not immediately informing the person concerned. However, once the facts have been sufficiently clarified and the evidence secured, the employee under investigation will be informed of the facts of which he or she is accused; the opening of the investigation; its progress; its possible duration; the drafting of an investigation report; etc. As part of their right to be heard, the employee under investigation will be invited to state their position on the facts of which they are accused and will also be given the opportunity to produce documents to prove their allegations, or to request the hearing of certain persons who could testify. It is up to the investigator to determine whether or not these additional hearings are useful to the investigation.

Yes, it is even advisable to keep the process and those involved as confidential as possible, so that they can speak freely without fear of retaliation or being influenced by other statements. What is essential is that the facts communicated to the employee under investigation enable them to make an informed decision and assert their right to be heard. This may therefore lead the employer to reveal the identity of the whistle-blower (if known) so that the employee under investigation can defend themself. On the other hand, it is not recommended to reveal the identity of witnesses, as an oral summary of their statements may suffice to inform the employee concerned.

Yes, it is customary to ask participants in an internal investigation to sign an NDA to remind them of their confidentiality obligation.

Under Swiss law, only the typical activity of a lawyer, ie, legal advice, is covered by attorney-client privilege. In view of the generally typical nature of the lawyer's activity in an internal investigation, the various documents and operations connected with it must, as a matter of principle, be protected by attorney-client privilege. This applies first and foremost to information and documents forwarded to the lawyer by the client, as well as those obtained from other parties involved in the internal investigation. There are also the documents that the lawyer draws up personally, or through the intermediary of their assistants, including (for the lawyer-investigator) minutes of interviews, any personal notes and interim or final reports to the employer. They all involve genuine legal assessments and are either part of the legal analysis carried out by the lawyer (personal notes and investigation report), or part of the understanding of the state of facts directly relevant and necessary to this analysis (minutes of interviews). Due to the existence of attorney-client privilege, the employer may object to the documents and conclusions being requested or seized by an authority, and then used by it.[1]

This point is discussed in doctrine, and some authors consider that the employee is a weaker party who should be assisted by a lawyer during an internal investigation. However, the employee under investigation does not have an absolute right to be accompanied by a trusted person or a lawyer, but the investigator may authorise them to do so. It should be remembered that the rules of criminal procedure, and in particular the right to be assisted by counsel, do not apply to internal investigations.[1] 

In Switzerland, works councils and trade unions are generally uncommon, and there are no legal provisions granting them the right to be informed or involved in an ongoing internal investigation.

The employer is not typically required to provide specific support to employees undergoing an internal investigation. However, the employer may permit these employees to be accompanied by a trusted individual or legal counsel. Any third parties involved in the investigation will need to sign separate non-disclosure agreements before participating.

Unrelated issues uncovered during the investigation do not automatically warrant the initiation of a separate investigation. However, if the investigation reveals other misconduct unrelated to the current inquiry, the employer must take appropriate action and impose sanctions on the responsible party after verifying the facts. In some cases, verifying these facts may require launching a new investigation into the separate matter. Alternatively, the investigation team may evaluate whether there is sufficient connection between the issues to justify expanding the scope of the current internal investigation.

If the employee who is the subject of the internal investigation makes criticisms of other employees in the course of the investigation, these must also be taken into consideration and investigated, so that the accused employee's right to be heard is respected. If the accused employee complains about the way the investigation is being conducted, the employer must hear and take account of this criticism if it is relevant, but it must not interrupt the course of the investigation.

An employee on sick leave cannot be forced to take part in an internal investigation. On the other hand, the investigation may continue in the employee's absence, for example, the interviewing of witnesses. Once the latter have been heard and depending on the progress of the investigation and the establishment of facts, the employer can decide whether the facts gathered are sufficient to draw up the investigation report, and if so, what measures should be taken against the employee, or whether, on the contrary, the investigation should be suspended to await their return. It should be noted that in the event of illness, the employee has a protection period of between 30 and 180 days, depending on seniority, during which they may not be dismissed (Article 336 c CO).

The internal investigation does not have to be suspended because criminal or civil proceedings have been brought against the employee under investigation. Rather, it is a question of expediency for the employer to determine whether the civil or criminal proceedings can replace the internal investigation or whether, on the contrary, they must act promptly by continuing the internal investigation already underway, in order to protect other employees in particular. The criminal and civil authorities may ask the employer to produce documents in his possession, if necessary, in application of the rules set out in the CrimPC or CPC. This being the case, the employer may invoke the lawyer-client privilege that covers exchanges that have taken place in the course of the investigation, in order to withhold elements of the investigation from the authorities.

The employee must be informed of the end of the internal investigation, its outcome and the measures envisaged against them as quickly as possible, so that the employer does not infringe on their wellbeing.

It is customary to give the employee the conclusions of the report, rather than the entire report, in order to guarantee the anonymity of the colleagues who testified during the investigation. Alternatively, the employee may be given an investigation report in which the names of witnesses have been redacted, but this is not always sufficient and may justify the employer's refusal to disclose the entire report. It should be noted that the employee cannot avail themself of Article 25 FADP, which allows for a person's right of access to their personal data and therefore to the investigation report, if the request for access is for a purpose unrelated to data protection. This is the case, for example, of an employee who wishes to obtain the investigation report in order to bring proceedings against his employer following his dismissal, and who does not claim any violation of the FADP.

If the investigation reveals misconduct, the question of what actions should be taken becomes pertinent. The seriousness of the misconduct and the extent of the damage caused are critical factors to consider. Additionally, the level of cooperation from the employee involved could be crucial in determining the investigation's outcome. There are various potential responses, such as implementing preventive measures or filing criminal complaints. If disciplinary actions are required, they may range from issuing warnings to pursuing ordinary or immediate termination of employment.

The findings must be submitted to the employer or management, but there is no obligation to disclose them to anybody else. Additionally, the employer is not required to file a criminal complaint with the police or the public prosecutor's office. 

From an employment law perspective, there is no statute of limitations for violations committed by the employee. The decision whether to retain the result depends on specific circumstances, such as the damage caused, the nature of the violation, the employee's position, the risk of recidivism, etc. From a data protection point of view, once the purpose of processing has been achieved, personal data must be deleted. This means that stored data must be deleted once the employment relationship has ended. However, prolonged storage may be justified if there are rights to be protected or obligations to be fulfilled, such as data required for possible legal proceedings, for the issue of an employment certificate or for matters relating to a non-competition clause.

As there are no specific regulations governing internal investigations, the legal framework guiding the employer's actions towards the employee derives mainly from labour law, criminal law and data protection standards. 

In the context of an internal investigation, the main risk for an employer who has wrongly dismissed an employee on the basis of an erroneous investigation report is that of having to pay compensation for unfair dismissal, up to a maximum of six months' salary. In addition, he may be liable to criminal sanctions under Article 179 ff. of the Swiss Criminal Code if they have violated the privacy of the employee under investigation. In practice, however, the risk is very low. Finally, there are no particular sanctions to be feared under the Data Protection Act, as the criminal authorities only act on complaints and only punishes offences committed intentionally.