Workplace Investigations

A workplace investigation will generally be triggered by an employee making a complaint; however, issues may also be brought to the attention of an employer through an anonymous tip, by suppliers or contractors, from customers or because of observations and hearsay.

Complaints can be made directly to Human Resources (HR), anonymously, by email to a line manager or a third party. While complaints do not need to be written and can be informal, brief or verbal, complaints of this nature can make the process harder and more information may be required.

The receipt of a complaint does not necessarily mean that an employer needs to undertake an investigation immediately. A grievance policy ordinarily contains a multi-step approach to dealing with complaints, starting with internal resolution options such as informal discussions, conciliation and mediation. However, an investigation should be commenced where:

• the complaint alleges serious misconduct or unlawful conduct;
• the employer is required to conduct a workplace investigation as per an employment contract, policy, procedure or industrial instrument; or
• the complaint is complex and requires clarity on what has occurred to establish the facts.

In general, an internal investigation is only initiated if there is suspicion of a violation. The decision to commence an internal investigation is up to the company, and it has to weigh the pros and cons. For limited liability companies, which are subject to the Association Responsibility Act, an internal investigation may exempt them from criminal liability. Disadvantages may include investigation costs, disruption of operations, discovery of information requiring later disclosure, possible negative media coverage and increased risk of exposure to external parties.

Investigations can relate to specific individuals, departments, or the entire company. An investigation may include various measures, such as obtaining and analysing files and documents, conducting questionnaires and employee interviews, monitoring internet use, video or telephone surveillance of employees and setting up whistleblowing hotlines. Not all measures are acceptable without restrictions. The provisions of labour law and data protection law must always be complied with.

To avoid wasting resources, the objectives of the investigation should be defined in advance. In addition, the selection and sequence of instruments to be used should be determined. A legal assessment of the chosen measures is essential to avoid legal complications.

First, the employer should appoint an investigator or investigative team that will be responsible for conducting the investigation. Next, the employer or the investigators might think about communicating with the involved employees. It depends on the situation if this is a good idea or not. In general, it can be recommended that the employer is transparent towards the involved employees and openly communicates about the (start of the) investigation process. This is definitively the case if it is already clear that the involved employees are under scrutiny because of their actions. In this case, the actual investigation can begin with a hearing of the involved employees. However, if there is a risk that employees will hide or destroy evidence or will collude to prevent the employer from finding the truth, the investigation can also start without any communication. In this case, it would be better to start collecting evidence before hearing from the employees involved.

Workplace investigations usually commence on the receipt of an allegation, which can be presented orally or in writing to an assigned member of the company (usually, within the HR, Compliance or Legal Departments, or to a direct supervisor) or via an external channel, as determined by the company’s policy.

The employer will generally obtain clues of employees' misconduct, actively or passively, through such means as internal audit, employee whistleblowing, whistleblowing from suppliers or partners, regular or irregular compliance management assessment of the employer and management concerns, and carry out investigation based on such clues. Meanwhile, the employer will further investigate whether the employees involved have committed other acts of misconduct.

The investigation is usually carried out from outside to inside and from the macro level to the specific level. That is to first interview the provider of the clues and other insiders for verification and obtaining further information. Then to conduct internal and external system and written documents review based on the investigation clues. Preliminary evidence will be formed after the basic verification of facts. Finally, the employer will interview the employees involved and listen to their explanations, and finally determine the subsequent handling method.

When the employer becomes aware of possible misconduct, the employer must commence an investigation immediately, in practice within about two weeks. The information may come to the employer's knowledge via, for example, the employer's own observations, from the complainant or their colleagues or an employee representative.

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?

Typical triggers for a workplace investigation may be internal hints (eg, from employees), internal audits, compliance or the legal department. However, investigations by the public prosecutor or other authorities can also lead to a workplace investigation.

There are no strict guidelines for the course of the investigation. The measures to be taken and the sequence in which they will be carried out to clarify the facts must be decided on a case-by-case basis. However, the first step should be to secure evidence. All relevant documents and records (eg, e-mails, hard disks, text messages, data carriers, copies) should be collected and employees may be interviewed. The second step should be to evaluate the evidence and the third step is to decide how to deal with the results (eg, whether any disciplinary measures should be taken or the intended procedures should be adjusted).

Irrespective of how a workplace investigation is commenced, when it comes to severe breaches of duty by an employee, a two-week exclusion period for issuing a termination for cause must be observed at all stages. This two-week period starts when the employer becomes aware of the relevant facts but is suspended as long as the employer is still investigating and collecting information, provided that the investigation is carried out swiftly.

Internal investigations can be initiated either upon a complaint or report by an employee, (or other persons providing services or seeking employment, etc) in the workplace or by the employer as part of their managerial right.

If from an employee, the complaint or report may fall within the scope of an internal disciplinary procedure, if any, or may concern an alleged workplace violence or harassment incident, or fall within the scope of L.4990/2022 on the protection of persons who report breaches of Union law.  

Reports by whistleblowers are submitted to the manager with responsibility for receiving and monitoring reports, a person appointed for that purpose under L.4990/2022. Complaints for incidents and harassment in the workplace can also be submitted, according to L.4808/2022, to the person or internal body specifically assigned to receive such complaints. Both laws require the employer to define the persons competent for receiving and monitoring complaints or reports and notifying the employees stricto sensu and any other persons falling within the scope of the respective provisions.

The circumstances in which an employer commences a workplace investigation may vary. However, it is common that an employer will consider it necessary to commence a workplace investigation upon receipt of a complaint concerning a fellow employee. Sometimes, the complaint may be made anonymously. If the employer considers there to be substance in the complaint, it may commence an investigation to find out the truth of the matter, resolve the complaint and, if necessary, improve its systems and controls to prevent the reoccurrence of any misconduct.

A workplace investigation may be warranted if the employer receives an enquiry from a regulator concerning its affairs or an employee’s conduct. The investigation findings could enable the employer to respond to the regulator (which could be a mandatory obligation) and at the same time assess its risk exposure.

As a precursor to the actual disciplinary process, investigations are usually initiated when the employer becomes aware of an allegation or complaint of misconduct, or observes any acts or omissions by an employee constituting workplace misconduct. The employer (or investigating committee – which could also be an outside agency like an auditor or law firm appointed by the employer) would generally commence the investigation by speaking with the complainant (or whistleblower) to gather as many details as possible (relevant facts, evidence, list of witnesses, etc) concerning the allegations, so that the next steps and approach can be determined upfront.

Investigations can start in multiple ways. They usually stem from an employee raising a grievance, a bullying complaint, or a possible protected disclosure. Investigations may also stem from the employer in a disciplinary context, or indeed can be commenced if an external complaint or issue is raised by a third party of the organisation.

The first thing the employer must consider is whether an investigation is necessary. It may be that the issue at hand can be resolved informally or is of such a nature that it cannot be investigated, either through a lack of detail or simply because the subject of the complaint is no longer an employee. Any such decision to investigate or not should be carefully documented.

The next step to determine is the nature of the investigation. It should be clear at the outset whether the investigation is simply a fact-gathering exercise or if the investigator will be tasked with making findings on the evidence. The distinction is significant as a fact-gathering investigation can proceed without prompting the full panoply of rights, but the basic principles of fairness should still be applied. A fact-gathering investigation should determine whether there is or is not, a case to answer. If a disciplinary hearing follows then the rights outlined in question 1 will apply at that stage. If it is a fact-finding investigation, the rights apply from the outset of the process. The employee who is required to respond to the issues (the respondent) should be fully aware of the extent of the investigation. The investigator appointed to do the investigation should be clear about what is expected of them.

If the employer believes an investigation is necessary, it should be acknowledged and started without delay. In particular, according to the Protected Disclosures legislation, a report should be acknowledged within seven days.

An employer should consider and identify the scope of the investigation and establish who will investigate the matter. Terms of reference under which the investigation will be carried out should be established by the employer and shared with the employee raising the issue (the complainant). An employer should not seek agreement on the terms, but invite commentary to ensure that the full scope of the investigation is captured within the terms of reference. Robust terms of reference that lay down the clear parameters of the investigation will assist the investigator and all parties involved in the process.

Generally speaking, a workplace investigation can commence either as a consequence of facts reported by employees or third parties (either anonymous or not), for instance within a whistleblowing procedure or as part of normal and periodical activity carried out by internal auditing.

The trigger for an investigation in the workplace may be:

• when an employee makes a report (eg, a report of harassment, a report of misconduct by another employee, etc);
• when an investigation is conducted by the Labour Standards Inspection Office or another regulatory agency;
• when a criminal or illegal act is discovered in the workplace; or
• when an internal audit conducted by the company reveals a problem.

The workplace investigation can be exercised by an internal (ad hoc) investigation department of the company itself, for example under the direction of the internal audit department or compliance department. This is possible if there is sufficient manpower with the necessary independence, knowledge and experience. Case law, however, shows that courts tend to be more critical of internal investigations than external investigations. For more complex and sensitive investigations, a forensic accountant or lawyer is often involved. The advantage of involving a lawyer is that the investigation and its outcome are covered by privilege. This guarantees the confidentiality of the investigation, also regarding supervisors and investigating authorities. Yet, at the same time, there is increasing debate about the role of lawyers as investigators, given their inherent bias to work in the interests of their client (the employer).

The investigation starts with a plan of approach that must be signed by the contractor. This plan of approach outlines the legal framework of the investigation, such as the scope, the means to be used, how it will deal with data, the use of experts, how the interviews will be conducted, the way of reporting and confidentiality. Furthermore, there must be a protocol for how the investigator conducts the investigation and that applies to all parties involved.

Gathering information can be done in various ways. For example:

• An inventory can be made of the household effects of a company. In the event of theft, an inventory can be an appropriate means of establishing exactly what has been stolen.
• An investigation of the books: this is an investigation of all documents of the company. These are not private documents of employees, but documents of the company itself. For an investigator, an interview can be a good way to gather more information, for example by interviewing witnesses. In practice, there are almost always several interviews with the suspects, the employer and other people involved.
• Open source research, which often involves researching a person's social media, or public documents relevant to the research. In principle, “open sources” refers to all public documents in the world; nowadays, many public documents are digitised.
• A workplace search, which includes everything present in the workplace: diaries, computer files, e-mails, letters, and even the contents of a wastebasket.
• A digital data investigation: this is a frequently used tool in fraud investigations. Most communication and documents are digital nowadays. It is, therefore, very likely that evidence can be found in digital data. Each of these means of investigation must respect the principles of an internal investigation and comply with the GDPR principles .

A workplace investigation is conducted to verify alleged misconduct within a workplace.[1]  Once a complaint is made regarding wrongdoing, misconduct or unethical behaviour by an employee or group of employees within a workplace, an investigation is required to confirm the complaint and if it is confirmed, the body in charge of supervising the employees (usually the HR specialist, disciplinary committee or line managers) determine and implement necessary corrective or disciplinary actions.

Workplace investigations are normally commenced either through a complaint filed by other employees in the workplace or by HR or other representatives of management.

Under the Safe Spaces Act, employers are required to commence an investigation and decide on complaints regarding gender-based sexual harassment, within ten days of the complaint being brought to their attention. For other workplace misconduct, management is given wide discretion regarding the means and method by which the workplace investigation may be carried out.

There are no legal requirements in this respect – it depends on the internal policies or practices at a given working establishment. Based on our experience – an internal investigation usually commences with a preliminary assessment of a reported irregularity. If the preliminary assessment leads to a conclusion that a reported situation may be an irregularity, an investigation is launched by appointing a commission or team that conducts the investigation or selecting an investigator. Then, a plan of investigation is established. Depending on the circumstances, the investigation plan may involve a collection of documents or files, their analysis, and interviews with a victim, witnesses or a subject (although the procedure depends on the type of case, internal rules and practice). At the end of the process, the report is prepared by the commission or team with facts established during the process, recommendations, and other suggestions as to the investigated issue.

Having been informed of an alleged infraction committed by an employee, the employer must prepare a detailed written accusation and notify the employee.

Moreover, if the alleged infraction constitutes gross misconduct and the employer is considering dismissal, a formal statement of the employer’s intention to dismiss the employee should accompany the accusation. If this is not expressly done, the employer will be unable to dismiss the employee and may only apply one of the conservatory sanctions. A copy of these documents must be sent to the works council, if any, and, should the employee be a union member, to the respective trade union.

Notwithstanding this, if before preparing the accusation the employer needs to further investigate the facts and circumstances, it may open a preliminary investigation aimed at collecting all the facts and circumstances and conclude if there are grounds to bring an accusation against the employee.

The preliminary investigation must start within 30 days of the employer becoming aware of the facts, be diligently carried out (but with no maximum period laid down by law) and concluded within 30 days of the last investigatory act. Furthermore, the preliminary investigation will suspend the relevant statutory deadlines and statutes of limitations (ie, 60 days from the date of acknowledgment, by the employer or a supervisor with disciplinary power, of the facts to enforce disciplinary action against the employee and one year from when the facts occurred, regardless of the employer’s acknowledgment, unless the infraction also constitutes a criminal offence, in which case the longer statutes of limitation established in criminal law will apply).

A workplace investigation usually commences with the receipt of feedback, a complaint or a grievance, by named or anonymous persons, in respect of a work-related matter or event, or the conduct of an employee.

There are many different ways a workplace investigation concerning employee misconduct could commence. Below are some key examples from our experience:

• an employee reports allegations concerning another employee’s misconduct through an ethics hotline or other means (eg, email, phone call);
• an outsider such as a former employee or a vendor reports allegations concerning employee misconduct to a company officer;
• an internal audit reveals potential employee misconduct;
• media reports raise allegations of employee misconduct; and
• an external investigation begins (eg, by criminal authorities or administrative agencies) concerning alleged employee misconduct.

Given that Spain lacks legislation in this area (see question 1), each company commences workplace investigations following its internal guidelines, policies or practices, if any. In our experience, investigations begin with a formal decision to commence the enquiry, which is set out in writing for record-keeping purposes.

This decision will normally mention:

• the facts that will be investigated;
• the reasons to investigate the facts (eg, they could be a breach of company policies);
• how the investigation will be conducted; and
• the individuals who will conduct the enquiry.

Depending on the company, the decision to initiate the investigation may take the form of a decision by the competent employee or officer (ethics or compliance officer) or the minutes of the relevant corporate body (board of directors or compliance committee).

An investigation can be initiated in several ways. It is usually as a result of whistleblowing or a report on work environment deficiencies, or through other channels (eg, HR, the police, media coverage).

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]

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.

The need to initiate an internal investigation may arise from the receipt of information from various sources. Reporting is one of the most common sources and can be in different forms. In Turkey, while conventional methods such as reporting to a direct supervisor, human resources or executives is quite common, whistleblowers also use reporting mechanisms such as web-based forms, telephone hotlines or e-mail, if such mechanisms exist. It is critical to obtain as much information as possible from the complainants at this initial contact, to make a sound decision on whether or not to commence an investigation. There is no requirement to decide to start an investigation and it can be commenced through a corporate resolution (eg, ethics committee resolution or board resolution) of a decision-making body or a decision of the body or person who has such authority under the company policies. The investigation team who will conduct the process may also be approved by the company's decision-making body. It is also advisable to have a preliminary inquiry for the complaints, before commencing a fully-fledged investigation.

The trigger could come from several sources, such as a grievance from a current or former employee, a complaint from external sources, a whistleblowing disclosure, or as the result of internal governance measures.

In each case, the employer will need to decide if an investigation is warranted. It may be required by internal policies or regulatory requirements in some circumstances. Consideration must be given to whether an investigation is feasible; for example, is the evidence still in existence and accessible? Are key witnesses still employed or contactable?

If the employer concludes that an investigation is warranted, it should start without unreasonable delay. The first step would usually be to set terms of reference, which outline the purpose and remit of the investigation. These should be closely drafted and continually referred to, to avoid the investigation’s scope expanding when new points arise (as they almost always will). An investigator will also need to be appointed (see question 4).

A workplace investigation is often, although not always, prompted by a complaint of workplace misconduct, usually made directly by the employee who was harmed by the conduct, a third party who witnessed the conduct, or a manager or supervisor who was made aware of the issue and has reporting obligations as a result of his or her role in the organisation. 

It is best practice – and often a legal requirement depending on the applicable state law – for companies to clearly outline a complaint process in their policies and to provide employees who experience, have knowledge of, or witness incidents they believe to violate the company’s policies with one or more options for making a report. Although the specific complaint procedure may vary depending on the size of the organisation, the nature of the business and the type of complaint at issue, many companies provide for (or require) making a report through one of the following channels:

• a company-managed hotline or online equivalent;
•  human resources;
• an affected employee’s supervisor or manager; or
• a member of the legal or compliance department.    

The circumstances in which an employer commences a workplace investigation may vary, either through a whistleblower, through an internal system, email or phone call; complaints from suppliers, contractors, or customers; or accounts from observations and hearsay. Sometimes, it comes from anonymous complaints. However, it is common for an employer to verify whether the report or complaint is substantiated, partially substantiated, or unsubstantiated, which is sufficient to initiate and commence a workplace investigation.

A complaint will be a whistleblowing complaint where a complainant has reasonable grounds to suspect that the information they are disclosing about the organisation concerns misconduct or an improper state of affairs or circumstances. The information can be about the organisation or an officer or employee of the organisation engaging in conduct that:

• breaches the Corporations Act 2001 (Cth);
• breaches other financial sector laws;
• breaches any other law punishable by 12 months’ imprisonment; or
• represents a danger to the public or the financial system.

Since 2020, all public companies, large proprietary companies and trustees of registrable superannuation entities in Australia are required to have a whistleblower policy. Employers conducting an investigation will need to follow the processes outlined in their policy.

One of the key differences when conducting an investigation that involves whistleblowing is identity protection and the ability of the whistleblower to disclose anonymously and remain anonymous.

The provisions of the Whistleblowing Directive must be respected. In Austria, these have been implemented through the Whistleblower Protection Act (HSchG). If the whistleblower or the persons concerned fall within the scope of the Directive, their identity must be protected. Only authorised persons may access the report. Retaliatory measures are invalid or must be reversed. Within a maximum of seven days, the whistleblower must receive a confirmation of his or her complaint. Feedback to the whistleblower must then be provided within a maximum of three months.

If the investigation is based on a whistleblower report that falls under the scope of the upcoming rules, the investigators are bound by a strict duty of confidentiality, especially regarding the identity of the report. The rules also provide some procedural deadlines for feeding back to the reporter. Within seven days of receiving the report through an internal reporting channel, the reporting manager needs to send a receipt to the whistleblower. From that moment, the reporting manager has three months to investigate the report and give feedback and an adequate follow-up to the report. Next, the rules offer strong protection against any retaliatory measures the reporter may experience. Regardless, these rules are mostly intended to offer the necessary protection for whistleblowers and to ensure that companies take necessary investigative steps following a report, but they do not include much information about the actual procedure of the investigation besides certain deadlines, nor do they deal with other employees involved (or under investigation).

If the investigation involves matters within the scope of a specific whistleblowing policy, the policy rules should prevail against the general investigation rules if there is a conflict.

In practice, the following factors to be considered will be: (1) verification of the informant's identity; (2) whether the informant has any conflict of interest with the reported employee or whether it will affect the objectivity of their reporting; (3) how to persuade the informant to provide more information or evidence, or to cooperate in court as a witness; (4) how to increase the admissibility of evidence when the informant refuses to cooperate in court as a witness or fails to provide original evidence; (5) how to improve the evidence chain and protect the informant from being attacked or retaliated by the informant, etc.

In respect of data protection, the processing of personal data in whistleblowing systems is considered by the Finnish Data Protection Ombudsman (DPO) as requiring a data protection impact assessment (DPIA).

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)).

In 2023, Germany has implemented the EU Whistleblowing Directive into national law with the German Whistleblower Protection Act (HinSchG).

The German Whistleblower Protection Act provides that companies with at least 50 employees must establish internal reporting channels as further set out in the law. Among other things, the confidentiality of the whistleblower as well as of the individuals affected by the report must be protected.

Further, whistleblowers must be protected from negative consequences that may arise from their reports. If the employment of a whistleblower were terminated or if the whistleblower were to be denied promotion after reporting a violation, the employer would have to prove that this was not related to the whistleblowing but was based on justified reasons.

Employers should  familiarise themselves with the provisions of the new law.

L. 4990/2022 includes specific requirements regarding, among other things, the procedure of receiving and investigating respective reports, confidentiality issues (especially regarding the identity of the whistleblower), data protection issues (including restrictions to the right of access) and the employer’s right to keep a record of the relevant complaint and investigation. Such provisions are expected to be further detailed by Ministerial Decisions in future.

Hong Kong does not have a comprehensive legislative framework relating to whistleblowing. Therefore, in general, employers are free to establish whistleblowing policies and procedures and confer such protections on whistleblowers as they see fit. That said, companies listed on the Main Board of the SEHK are expected to establish a whistleblowing policy and system for employees to voice concerns anonymously about possible improprieties in the companies’ affairs. If a listed issuer deviates from this practice, it must explain the deviation.[1]

When an investigation involves whistleblowing, the employer needs to comply with the relevant policy and system and provide the whistleblower with such protections as stated in the policy. The employer should not ignore a complaint simply because it was made anonymously, and should ascertain the substance of the complaint to decide whether a full-blown investigation is warranted.

In addition, the employer should seek to establish a secure communication channel with the whistleblower to gather more information about the complaint or misconduct while maintaining the confidentiality of his or her identity. If the complaint is serious, the employer may consider referring the complaint to a law enforcement agency or regulator as they would be better placed in protecting the anonymity of the whistleblower while proceeding with the investigation. That said, employers generally have no obligation to report internal wrongdoing to any external body (please see question 25 for exceptions). The employer may assess whether it is appropriate to do so on a case-by-case basis.

Indian labour legislation does not stipulate any additional considerations or requirements concerning whistleblower complaints in private organisations and these are only available if there are complaints against public servants. Further, under the Companies Act, 2013, certain companies are required to establish a “vigil mechanism” for directors and employees to report genuine concerns regarding the affairs of the company. The vigil mechanism should provide adequate safeguards against the victimisation of persons using it.

Most whistleblowing policies will include a section that provides for an initial assessment of the complaint as to whether it meets the definition of a protected disclosure. This assessment, which ought to be carried out by a designated person who has been appointed to deal with disclosures, is a useful tool as some matters which may be labelled as whistleblowing may fall under the grievance procedure.

Where there are grounds, an investigation will be commenced. Under the Protected Disclosures (Amendment) Act 2022, whistleblowers are protected from penalisation for having made a protected disclosure, under the Act.

Penalisation may include; suspension, lay-off or dismissal; demotion, loss of opportunity for promotion or withholding of promotion; transfer of duties, change of location or place of work; reduction in wages or change in working hours; the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty); coercion, intimidation, harassment or ostracism; or discrimination, disadvantage or unfair treatment.

If an employee (which includes trainees, volunteers, and job applicants) alleges that they have suffered penalisation as a result of making a protected disclosure, they may apply to the Circuit Court for interim relief within 21 days of the date of the last act of penalisation by the employer.

A claim for penalisation may also be brought before the WRC within six months of the alleged act of penalisation. If an employee alleges that they were dismissed for having made a protected disclosure, the potential award that the WRC can make increases from the usual unfair dismissal cap of two years’ pay to up to five years’ gross pay, based on actual loss.

Where a complaint of whistleblowing is made, employers should ensure that they appoint investigators with the appropriate knowledge and expertise to deal with such a matter and comply with the time limits set by legislation.

The regulations on whistleblowing in the private sector were originally outlined in article 6 of Italian Legislative Decree No. 231 of 2001 (as amended by Law No. 179 of 2017), which state that the models of organisation must provide for one or more channels that allow persons in positions of representation, administration and management of the entity (and persons subject to their direction or supervision) to report unlawful conduct according to Italian Legislative Decree No. 231 of 2001 and violations of the entity’s organisational and management rules.

Currently, Italy has implemented Directive (EU) No. 1937 of 2019, which provides for the adoption of new standards of protection for whistleblowers, through the Italian Legislative Decree No. 24 of 2023 (WB Decree)[1].

In line with the Directive, the WB Decree states, inter alia, that[2]:

• an internal whistleblowing reporting channel must be put in place by all private legal entities (and legal entities in the public sector) that have employed, during the previous year, an average of 50 employees or, even below this threshold, operate in certain industries[3] or have adopted an organizational model in accordance with Legislative Decree no. 231 of 2001;
• the WB Decree prescriptions apply to reports concerning breaches of certain national/EU[4] legal provisions (varying depending on features such as the private or public nature of the employer and its dimensions), and not to claims or requests linked to interests of a personal nature of the reporting individuals (pertaining to their individual employment contracts or to relations with their superiors)[5];
• whistleblowers’ reporting may take place through:
  • the company’s internal reporting channels and internal reporting procedures (with the possibility – for entities employing up to 249 employees, even if not part of the same group – to share whistleblowing reporting channels); or
  • external reporting channels and external reporting procedures established by the member states’ competent authorities (in Italy, ANAC, i.e. the National Anticorruption Authority); or
  • in certain circumstances, public disclosure;
• whistleblowing systems must provide:
  • a duty of confidentiality regarding the whistleblowers’ identity (which generally may not be disclosed to persons other than those competent to receive or investigate on the reports, except in specific case and with the whistleblower’s consent; see also answer to question 12 below); and
  • ways of protecting collected data according to the GDPR, as well as tight deadlines for communication with whistleblowers[6]; and
  • an integrated system of protection of whistleblowers against any retaliatory action directly or indirectly linked to their reports or declarations, with a reversal of the burden of proof (meaning the employer must give proof of the non-retaliatory nature of measures adopted vis-à-vis whistleblowers); and
  • the procedures to be taken in case of anonymous whistleblowing report.

See question 4 regarding amendments to the Whistleblower Protection Act.

The person designated as a whistleblower response service employee must not divulge the name, employee ID number, or other information that would allow a whistleblower to be identified without a justifiable reason, and there is a criminal penalty of up to 300,000 yen for violating this duty of confidentiality.

The former Act on the House for Whistleblowers already provided for several preconditions that a whistleblowing procedure must meet. For example, internal reporting lines must be laid down, as well as how the internal report is handled, and an obligation of confidentiality and the opportunity to consult an advisor in confidence must be applied. Employers are obliged to share the whistleblowing policy with employees, including information about the employee's legal protection. The employee who reports a suspicion of wrongdoing in good faith may not be disadvantaged in their legal position because of the report (section17e/ea Act House of Whistleblowers).

The starting point is that an employee must first report internally, unless this cannot reasonably be expected. If the employee does not report internally first, the House for Whistleblowers does not initiate an investigation. The House for Whistleblowers was established on 1 July 2016 and has two main tasks: advising employees on the steps to take and conducting an investigation in response to a report.

The Act on the Protection of Whistleblowers, which entered into force in 2023, introduced several changes, of which the most relevant are:

• Abolition of mandatory internal reporting: the obligation to report internally first is abolished. Direct external reporting is allowed, such as to the House for Whistleblowers or another competent authority. When reporting externally, the reporter retains his protection. However, reporting internally first remains preferable and will be encouraged by the employer as much as possible.
• Expansion of prohibition on detriment: the prohibition on detriment already included prejudicing the legal position of the reporter, such as suspension, dismissal, demotion, withholding of promotion, reduction of salary or change of work location. It now also includes all forms of disadvantage, such as being blacklisted, refusing to give a reference, bullying, intimidation and exclusion. 
• Stricter time limit requirements for internal reporting: the reporter must receive an acknowledgement of receipt of the report within seven days and the reporter must receive information from the employer on the assessment of their report within a reasonable period, not exceeding three months.

• Extension of the circle of protected persons: not just employees, but third parties who are in a working relationship with the employer are now also protected, such as freelancers, interns, volunteers, suppliers, shareholders, job applicants and involved family members and colleagues.

Consideration must be given to the confidentiality or anonymity of the whistleblower, when an investigation involves whistleblowing.

Since there is no specific law that governs whistleblowing, matters that involve whistleblowing will be governed by company policy.

In principle, an internal investigation should be conducted in the same way, regardless of whether it is initiated following a whistleblowing report, an audit, or a monitoring result. This includes anything related to confidentiality, fairness, data privacy protection, etc.

If an internal investigation is initiated following a whistleblower report, the main characteristic that is imposed by the EU Directive on the protection of persons who report breaches of EU Law (Whistleblowers Directive) and that will also be available under the Draft Law is for the organisation (employer) to communicate (if practicable) the report to the whistleblower. Furthermore, the whistleblower should receive feedback as to whether follow-up actions were undertaken following the report and, if yes – what actions were taken – and if not – why the follow-up actions were not taken.

The treatment of whistleblowers and their reports is laid down in various specific laws in Portugal.

Law 93/2021

Under Law 93/2021, a whistleblower of work-related offences must not be retaliated against. Furthermore, imposing disciplinary penalties on the whistleblower within two years after their disclosure is presumed to be abusive. The whistleblower is entitled to judicial protection and may benefit from the witness protection programme within criminal proceedings. Additionally, reports will be recorded for five years and, where applicable, personal data that is not relevant for the handling of a specific report will not be collected or, if accidentally collected, will be deleted immediately.

Corruption and Financial Crime Law (Law 19/2008)

Under Law 19/2008, a whistleblower must not be hampered. Furthermore, the imposition of disciplinary penalties on a whistleblower within one year following the communication of the infraction is presumed to be unfair.

Additionally, whistleblowers are entitled to:

• anonymity until the pressing of charges;
• be transferred following the pressing of charges; and
• benefit from the witness protection programme within criminal proceedings (remaining anonymous upon the verification of specific circumstances).

Money Laundering and Terrorism Financing Law (Law 83/2017)

Law 83/2017, which sets forth the legal framework to prevent, detect and effectively combat money laundering and terrorism financing, applies to financial entities and legal or natural persons acting in the exercise of their professional activities (eg, auditors and lawyers)(collectively, obliged entities).

According to article 20 of Law 83/2017, individuals who learn of any breach through their professional duties must report those breaches to the company's supervisory or management bodies. As a result, the obliged entities must refrain from threatening or taking hostile action against the whistleblower and, in particular, unfair treatment within the workplace. Specifically, the report cannot be used as grounds for disciplinary, civil or criminal action against the whistleblower (unless the communication is deliberately and clearly unjustified).

Legal Framework of Credit Institutions and Financial Companies (RGICSF)

Credit institutions must implement internal-reporting mechanisms that must guarantee the confidentiality of the information received and the protection of the personal data of the persons reporting the breaches and the persons charged. Under article 116-AA of RGICSF, persons who, while working in a credit institution, become aware of:

• any serious irregularities in the management, accounting procedures or internal control of the credit institution; or
• evidence of a breach of the duties set out in the RGICSF that may cause any financial imbalance, must communicate those circumstances to the company's supervisory body.

These communications cannot, per se, be used as grounds for disciplinary, criminal or civil liability actions brought by the credit institution against the whistleblower.

Moreover, article 116-AB of the RGICSF establishes that any person aware of compelling evidence of a breach of statutory duties may report it to the Bank of Portugal. Such communications cannot, per se, be used as grounds for disciplinary, criminal or civil liability actions brought by the credit institution against the whistleblower, unless the report is clearly unfounded.

The Bank of Portugal must ensure adequate protection of the person who has reported the breach and the person accused of breaching the applicable duties. It must also guarantee the confidentiality of the persons who have reported breaches at any given time.

Portuguese Securities Code (CVM)

Article 382 of the CVM states that financial intermediaries subject to the supervision of the Portuguese Securities Market Commission (CMVM), judicial authorities, police authorities, or respective employees must immediately inform the CMVM if they become aware of facts that qualify as crimes against the securities market or the market of other financial instruments, due to their performance, activity, or position.

Additionally, according to article 368-A of the CVM, any person aware of facts, evidence, or information regarding administrative offences under the CVM or its supplementary regulations may report them to the CMVM either anonymously or with the whistleblower's identity. The disclosure of the whistleblower's identity, as well as that of their employer, is optional. If the report identifies the whistleblower, their identity cannot be disclosed unless specifically authorised by the whistleblower, by an express provision of law or by the determination of a court.

Such communications may not be used as grounds for disciplinary, criminal, or civil liability action brought against the whistleblower, and they may not be used to demote the employee.

According to article 368-E of the CVM, the CMVM must cooperate with other authorities within the scope of administrative or judicial proceedings to protect employees against employer discrimination, retaliation or any other form of unfair treatment by the employer that may be linked to the communication to the CMVM. The whistleblower may be entitled to benefit from the witness-protection programme if an individual is charged in criminal or administrative proceedings because of their communication to the CMVM.

Under the Prevention of Corruption Act 1960 and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (CDSCA), in any civil or criminal proceeding, no witness is obliged to disclose the name or address of any informer, or disclose any information that might lead to his or her discovery concerning offences such as corruption, drug trafficking, and money laundering, save where:

• in any proceeding for the offence, the Court, after a full inquiry into the case, is of the opinion that the informer wilfully made, in his complaint, a material statement that he knew or believed to be false or did not believe to be true; or
• in any other proceeding, the court is of the opinion that justice cannot be fully done between the parties without the discovery of the informer.

In line with the above, employers should therefore keep the informer’s identity confidential upon receiving a complaint relating to corruption, drug trafficking, money laundering, and other serious offences prescribed in the second schedule of the CDSCA.

Aside from the legal obligations imposed on the company when dealing with a whistleblower who is subject to the WPA as discussed in question 1, there are also practical considerations the company should keep in mind when dealing with a whistleblower, regardless of whether the whistleblower falls under the WPA.

For example, there have been instances where an employee who raised allegations filed a complaint with Korean authorities (such as the Anti-Corruption and Civil Rights Commission (ACRC) or the Labour Office) that the company took retaliatory action against the whistleblower. The company should carefully review the legal risks before taking action, such as personnel action or civil or criminal action, against an employee who raises allegations if that employee was also involved in the wrongdoing.

Directive (EU) 2019/1937 of the European Parliament and of the Council, of 23 October 2019, on the protection of persons who report breaches of Union law, has been implemented in Spain through Law 2/2023 (Ley 2/2023, de 20 de febrero, reguladora de la protección de las personas que informen sobre infracciones normativas y de lucha contra la corrupción). This law limits the capacity of companies to retaliate or to take any action against employees who report workplace violations or breaches of the law. Any action taken against an employee in such a position would be considered null and void if challenged in court.

Spanish law allows anonymous reports to protect whistleblowers from retaliation.

If the Swedish Whistleblowing Act governs the investigation, additional considerations apply relating to who may investigate a reported irregularity (see question 4) and the duty of confidentiality and restrictions on access to and disclosure of personal data in investigations (see questions 6, 10 and 11), as well as the rights and protections of whistleblowers.

As regards the rights and protections of whistleblowers, the following can be noted. A person reporting in a reporting channel governed by the Swedish Whistleblowing Act is protected against retaliation and restrictive measures. Thus, companies are prohibited from preventing or trying to prevent a person from reporting, and retaliating against a person who reports. Furthermore, a reporting person will not be held liable for breach of confidentiality for collecting the reported information if the person had reasonable grounds to believe that it was necessary to submit the report to expose irregularities. Under the Swedish Whistleblowing Act, any person reporting irregularities in a reporting channel established under the Swedish Whistleblowing Act may also report irregularities to designated Swedish authorities.

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.

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.

Although there is no specific legislation in Turkish law on whistleblowing, necessary mechanisms need to be implemented to ensure that whistleblowers and the whistleblowing process are kept confidential. In addition, whistleblowers must be encouraged and supported to be open about raising their concerns in good faith. A whistleblowing activity, when it amounts to raising a concern in good faith, must not be mistreated by the employer. Employers should also put in place protection mechanisms against the mistreatment of whistleblowers or retaliation towards them by other employees.   

The employer should first identify which individuals may have protection as whistleblowers. This could be a current or former employee who raises the initial complaint, a co-worker who gives evidence as part of the investigation, or the accused employee.

In each case, consider whether a “protected disclosure” has been made (under Part IVA ERA 1996). This requires analysis of the subject matter of the disclosure, how it is made, and a reasonable belief that it is made in the public interest.

Employers must then ensure there is no detrimental treatment or dismissal of any worker on the grounds of their protected disclosure. Although the causation test for these purposes is not straightforward, as a general rule if the protected disclosure has a “material influence” on the decision to discipline or dismiss, there may be liability. Individual managers may be personally liable alongside the employer. Compensation for whistleblowing cases is uncapped, meaning businesses and individuals can face significant financial and reputational exposure.

What this means in practical terms is that the employer should promote a “speak-up” culture and, where protected disclosures are made, ensure they are handled by a team who are properly trained in how to do so.

Several federal, state, and local employment laws prohibit retaliation against employees who come forward with complaints or participate in corporate investigations. Employees who possess information regarding corporate misconduct may also be considered whistleblowers protected from retaliation under federal and state whistleblower laws, including but not limited to the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Consumer Financial Protection Act of 2010.

An employee generally does not need to show that he or she was terminated or demoted to bring a retaliation claim; other actions on the part of the employer may qualify if they could be seen to discourage employees from raising complaints. To protect against a potential retaliation claim, employers should make clear at the outset of an investigation that retaliation will not be tolerated and require the complaining employee (and potentially his or her manager) to bring any instances of retaliation to the investigator’s attention immediately.

It is up to the employer to determine whether or not to open an investigation after a complaint from a whistleblower. It is very important that the identity of the whistleblower is protected and that the employer also should not reveal the identity of the witness or the source of information, as the sources and witnesses may fear retaliation and feel uncomfortable or hesitant in giving information or raising concerns again.