Workplace Investigations

Once the decision to undertake a workplace investigation has been made, it is important to decide who is the most appropriate person to conduct the investigation. For the investigation process to run smoothly a single lead investigator should be selected, although they may work with a larger team. The lead investigator and investigation team can be internally or externally appointed.

In deciding whether to appoint an external investigator an employer should consider:

• the nature of the allegations;
• the seniority of the respondent;
• whether a fair investigation can be conducted internally without any actual or perceived bias;
• whether there is a dedicated HR department with someone who has the required capability, skills and experience to conduct the investigation; and
• whether the employer wants the investigation to be covered by legal professional privilege.

If the employer decides to investigate the matter internally without appointing a third party, then the investigator does not need to have any specific qualifications. However, it is prudent to confirm that the investigator has the time and skills to conduct the investigation and that they can be objective.   

There are no prescribed minimum standards for this procedure. The responsibility for conducting these investigations lies with the employers. Internal compliance or legal teams are often entrusted with this task, as they are familiar with internal protocols. In practice, these investigations are often overseen by an internal team, occasionally with the assistance of law firms or auditing firms. Those involved in the investigation must remain impartial. Potentially biased persons, such as those under investigation and their close associates, should be excluded from participation.

In general, there are no legal minimum qualifications, the employer can delegate the investigation task to anyone. Of course, it is strongly recommended to appoint someone who is not involved in the case and who can lead the investigation objectively with the necessary authority to take investigative measures.

However, in the specific case of an official complaint due to sexual harassment, violence or bullying at work, the investigation will be conducted by the prevention advisor for psychosocial aspects. Next, if the investigation is based on an internal whistleblowing report, there will have to be an independent reporting manager responsible for receiving the report, giving feedback to the whistleblower and ensuring a decent follow-up to the report. Logically, the reporting manager will lead the investigation in this case, but he can be assisted by other persons or a team who are bound by a duty of confidentiality.

There is no statutory rule, and therefore the investigator can be chosen by the company.

In sensitive matters, it is recommended that attorneys undertake the investigation due to legal privilege. Engaging external lawyers increases the confidence of witnesses and parties in the independence and lack of bias of the investigation process, especially when the allegations involve senior employees.

Additionally, attorneys are trained to collect information based on legal thresholds that apply to the allegations, allowing the decision-makers to understand the events as they would be posed before a labour judge or a prosecutor, and enabling them to clearly assess the legal risk involved in the situation.

In some laws and regulations for specific industries, enterprises or personnel, there are certain requirements for the qualifications of investigators. For example, according to the Interim Measures for Investigating and Dealing with Disciplinary Violations of Professional Personnel by Medical Institutions, the personnel conducting an investigation and evidence collection shall not be less than two. If the investigator is a close relative of the investigated person, or a tip-off person or a key witness of the issue to be investigated, the investigator shall withdraw from the investigation.

However, at present, there are no unified and detailed national rules and regulations on the qualification of the investigators and organizations. In practice, the selection of the personnel and organizations responsible for internal investigation is usually based on the relevant provisions in the internal rules and regulations of the employer. The personnel conducting internal investigation are usually internal functional departments of the employer and are independent to some extent, including the personnel department, legal department, compliance department or risk control department. For significant or complex issues or senior management investigations, in order to ensure professionalism, accuracy and compliance, external law firms, consultants and accounting firms are also frequently hired to conduct investigations.

The employer must conduct the investigation, but the actual work can be done either by the employer's personnel or by an external investigator, for example, a law firm. Either way, there are no formal criteria for the persons executing the investigation; however, impartiality is required from the person conducting the investigation

In determining who is to conduct a workplace investigation, the main objective is to ensure that the team is independent or at least that it is perceived as being independent. The key people in the investigation team can be identified in a pre-established procedure. It is good practice to give decision-makers the possibility to set up, on a case-by-case basis, the team most appropriate to the situation.

It is up to the company to decide who should carry out the workplace investigation and individual investigative steps. If their staff is used, the question arises of which person or department (compliance, legal, internal audit, HR or management) should take the lead. The answer to this question may depend on various factors such as the number of employees affected by the workplace investigation and the nature of the alleged misconduct. In any event, due to various employment law and data protection issues, the HR department and the legal department should be involved.

Further, it may make sense to bring in external advisors to lead the investigation together with an internal investigation team of the company. The engagement of an external investigation team can also be advantageous concerning the two-week exclusion period for termination for cause. This period does not start to run as long as the external advisors are investigating, but only when the persons authorised to terminate employment receive the investigation report.

As far as the persons in charge of an internal investigation are concerned, L. 4990/2022 on the protection of persons who report breaches of Union law provides for certain conditions that should be met when exercising their duties (ie, being impartial and abstaining when there is a conflict of interest), which also apply as general principles in all disciplinary procedures. Whistleblowing legislation stipulates that persons appointed to receive and investigate a whistleblowing procedure should meet certain conditions, including no penal proceedings against them, no disciplinary proceedings or convictions for specific offences, and no workplace suspensions.

Official disciplinary procedures are conducted by the competent bodies as described in the respective internal labour regulations.

Although not specifically regulated, support from external advisors (eg, lawyers) is allowed.

There are no statutory or regulatory requirements regarding the choice of investigator in workplace investigations. However, it is good practice to have the investigation conducted by persons who have been trained to do so as investigations may involve intricate issues. It is also important that the investigators are perceived to be impartial and fair. For that reason, the investigators should be individuals who are not involved in the matter under investigation.

Complex cases or cases that involve a senior employee may require someone more senior within the company to lead and oversee the conduct of the investigation. This also applies where it is foreseeable that the investigation may lead to disciplinary action, summary dismissal of the employee or a report to an authority.

Engagement of external parties or professional advisors may be necessary if the conduct under investigation is serious or widespread and may lead to regulatory consequences, or if the employer does not have the requisite expertise to handle the investigation. Lawyers (whether in-house counsel or external lawyers) may be the best fit to conduct a workplace investigation to ensure that legal professional privilege attaches to documents and communications created during the investigation (please see question 14).

Complaints pertaining to sexual harassment can only be investigated by the IC constituted under the SH Act.

For other kinds of misconduct, employers usually constitute a fact-finding investigation team with members who are independent and unbiased. The fact-finding team can be appointed internally, or the employer could also engage an external agency, depending upon the gravity and sensitivity of the matter, the nature of the issues being investigated or a desire to try and maintain legal privilege regarding the findings of the investigation.

An investigator does not have to hold any minimum qualifications. More often than not it is an employee's manager or HR manager who is carrying out the investigation. Crucially, the person carrying out the investigation must not be involved in the complaint, as an argument of bias could be made before the investigation begins. The investigator should also be of suitable seniority to the respondent and have the necessary skills and experience to carry out an investigation. If a recommendation by the investigator is made to progress the matter to a disciplinary process, which may in turn be the subject of the appeal, there should be adequate, neutral personnel within the organisation to deal with each stage. Again if the investigator and the disciplinary decisionmaker are the same person, an argument of bias will be made that will usually lead to a breach of fair procedures and any decision being unsustainable. Frequently, employers outsource the investigation to an external third party as there may simply not be adequate personnel within the organisation to carry out the process. Employers should ensure that within their policies the right to appoint an internal or external investigator is reserved.

In general, from an employment law perspective, there is no specific legal rule governing the minimum qualifications of who should conduct a workplace investigation. Generally speaking, a workplace investigation is carried out by the internal audit function, when there is one (generally in large companies), or by the HR or legal departments.

Outside the workplace, the employer may carry out investigations on the employee – normally without the latter knowing – through a private investigator. This investigation should be carried out to verify that the employee does not engage in conduct contrary to the company’s interests (eg, unlawful competition, disclosure of confidential information, criminal breaches). In such cases, the private investigator must comply with specific rules, mainly found in Italian Royal Decree No. 773 of 1931, according to which the investigator must, among other things: hold a licence issued by the competent authority; and keep a register of the activities conducted daily.

In addition, if there is a suspicion that a crime has been committed, the company may appoint a criminal law lawyer to conduct their own defensive criminal law investigation, as provided by article 391bis and the Italian Criminal Procedure Code.

There are no specific qualifications or requirements for an investigator. In many cases, the investigation is handled by a department or employee as deemed appropriate by the company. In some cases, an outside attorney may be asked to handle the investigation. Also, when it is a serious matter for the company, a third-party committee may be formed and commissioned to conduct an investigation.

However, under the revision of the Whistleblower Protection Act, which came into effect in June 2022, entities employing 300 or more employees must designate a person (whistleblower response service employee) in charge of accepting internal whistleblowing reports, investigating internal whistleblowing reports, or taking corrective measures as a whistleblower response service provider. Entities with less than 300 employees must also make an effort to do the same.

The person designated as a whistleblower response service provider must not divulge the name, employee ID number, or other information that would enable whistleblower identification without a justifiable reason. Criminal penalties (fines of up to 300,000 yen) have been established for violations of this confidentiality obligation.

Workplace investigations, if they are to be of value, must be conducted by an expert, professional and independent party. To safeguard the independence of the investigation, it is crucial that neither the contractor nor any other third party can influence how the investigation is to be conducted or how the outcome should be reported. The investigation must be conducted according to the protocol drawn up at the start and the investigator must not be involved in the follow-up to the outcome.

There is an ongoing discussion of whether lawyers can conduct an objective and independent investigation, due to the bias inherent to their profession. On the other hand, investigation bureaus or committees are also not necessarily independent, as they are not regulated and not subject to disciplinary law.

Typically, the legal department, the chief compliance officer, the HR manager, the audit committee or any other committee as may be set up by the company may conduct a workplace investigation. However, in other instances, the company may engage the services of independent external personnel to assist with conducting an internal investigation.

The minimum qualification or criteria of the person conducting the investigation should be as contained in the relevant company policies. Criteria may include independence, objectivity and impartiality.

Under the Safe Spaces Act, an employer should create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of gender-based sexual harassment, which should:

• adequately represent the management, the employees from the supervisory rank, the rank-and-file employees, and the union, if any;
• designate a woman as its head and no less than half of its members should be women;
• be composed of members who are impartial and not connected or related to the alleged perpetrator;
• investigate and decide on the complaints within 10 days or less upon receipt thereof;
• observe due process;
• protect the complainant from retaliation; and
• guarantee confidentiality to the greatest extent possible.

For other types of offences, it is the prerogative of management as to who will conduct the investigation and how it will be conducted, provided the proceedings remain impartial.

There are no legal requirements in this regard but it is good practice if the team of investigators or individuals who deal with the case consists of:

• a person who has specific knowledge in a given field (concerning the violation);
• a member of the HR team; and
• a lawyer (it is recommended to engage an independent, external lawyer who can maintain the objectivity of the investigation, especially in complex matters or where a conflict of interest arises or may arise).

It is crucial that the investigators are independent (and they must be allowed to act independently).

Also, certain personal features are useful (eg, the ability to objectively assess a situation, empathy, and managing skills).

According to article 356(1) of the Portuguese Labour Code, the employer can appoint an instructor, who shall be responsible for the probationary proceedings. Usually, workplace investigations are conducted by external advisors (eg, lawyers), appointed by the employer.

However, regarding disciplinary powers, there is a legal limitation in article 98 of the Portuguese Labour Code. As such, only the employer (or the immediate superior of the concerned employee, if the employer has delegated its powers, as per article 329(4) of the Portuguese Labour Code) has disciplinary powers.

While there are no prescribed minimum qualifications or criteria that need to be met for any person conducting a workplace investigation, the person handling employee grievances should be someone who:

• has been authorised and empowered to do so by the employer;
• is not in a position of actual or potential conflict; and
• is independent and impartial.

The grievance handler should be familiar with the organisation’s investigative procedure, have attended the relevant training to ensure full compliance with the same; and have a good understanding of the expectations and norms set out by the Tripartite Guidelines on Fair Employment Practices.

While there are no laws that set minimum qualifications for who should conduct a workplace investigation, companies often engage external legal counsel to ensure the investigation is conducted in an unbiased and professional manner. If the company itself undertakes the workplace investigation, the company should take precautions such as ensuring that the person conducting the investigation is not biased and not involved in the alleged wrongdoing. If the person conducting the investigation cannot converse in the native language of the employee under investigation, the company may consider arranging for an interpreter when conducting interviews, to minimise the risk of misunderstanding.

As set out in question 1, workplace investigations must be proportional and companies must use the least intrusive means to affect employees’ rights. This translates into the following principles on who conducts the investigation:

• the enquiry must involve a minimal number of employees;
• only those employees with competencies on the investigated matters should be involved (normally human resources or compliance); and
• employees conducting the investigation must be qualified and have the power and seniority to do so proficiently (although a formal qualification is not required).

If the workplace investigation falls under the Swedish Whistleblowing Act, the investigation has to be conducted by independent and autonomous persons or entities designated under the Swedish Whistleblowing Act as competent to investigate reports.

If the workplace investigation is not governed by the Swedish Whistleblowing Act, there are no minimum qualification requirements. When appointing an investigator, one should consider who would be most suitable in the given situation. For example, it may in some situations be more suitable to have an external investigator to ensure impartiality.

The examinations can be carried out internally by designated internal employees, by external specialists, or by a combination thereof. The addition of external advisors is particularly recommended if the allegations are against an employee of a high hierarchical level[1], if the allegations concerned are quite substantive and, in any case, where an increased degree of independence is sought.

The employer should conduct a workplace investigation on its own; however, an outside firm experienced in interviewing witnesses and assessing the credibility of evidence may also be appointed to assist with the workplace investigation.

There is no minimum qualification or criteria provided under Thai laws. It is worth noting that anyone who has been accused of misconduct or potentially has a conflict of interest should be excluded from any role in the investigation. This is to avoid a challenge from the subject employee that the investigation was not conducted fairly.

There is no compulsory requirement or qualification arising from the law as to the selection of the investigation team. The number and the profile of the investigation team need to be decided according to the characteristics of the case, whereas the head of the investigation team needs to be a competent and experienced investigator. A conflict of interest review is required to be conducted for the whole investigation team to protect the interests of the company. As conflicts of interest can also arise during an investigation process, relying on the support of an outside legal team should be considered, particularly for internal investigations that are likely to expand.

The investigator would typically be a line manager or HR representative. Complex cases, particularly if criminality is suspected, or cases where a senior employee is accused of misconduct, may require the investigator to be someone more senior within the organisation, or someone from the in-house legal team. Employers should bear in mind the need for someone more senior than the investigator to act as a disciplinary decisionmaker, if disciplinary action is found to be warranted.

Check the organisation’s policies and procedures, which may stipulate who can act as an investigator.

The investigator should be someone without any personal involvement in the matters under investigation, or any conflict of interest, but with sufficient knowledge of the organisation and where possible with both training and experience in conducting investigations.

The business should consider how any prospective investigator may appear if they are called as a witness in court, or to give evidence before any governmental committee or regulatory panel. They should also consider whether the employee accused of wrongdoing should have any say in the choice of investigator; this would not typically occur, but having the employee’s buy-in can increase the chances of a successful outcome to the investigation.

It is becoming increasingly common for businesses to use an external consultant or lawyer to conduct workplace investigations. This may be beneficial where it is not operationally viable within the employer organisation to have a different person conducting the investigation and the disciplinary hearing, or if the investigation is particularly sensitive or complex, or relates to a very senior employee. If an external investigator is appointed, the employer remains responsible for that investigation.

While every internal investigation should be carried out promptly, thoroughly and in a well-documented manner, employers should appoint one individual or team of individuals to oversee all complaints regardless of how they are received. Doing so helps to ensure that all allegations are documented, reviewed and assigned for investigation as consistently as practicable.

Once a complaint is received and recorded, the company should undertake an initial triage process to determine:

• the risk of the alleged misconduct from a reputational, operational and legal perspective;
• who is best suited to conduct an investigation based on the nature of the alleged misconduct and the perceived risk level (potential candidates may include members of human resources, legal or compliance departments, or outside counsel); and
• a plan for investigating the factual allegations raised in the complaint.

The appropriate investigator should be able to investigate objectively without bias (ie, the investigator cannot have a stake in the outcome, a personal relationship with the involved parties and the outcome of the investigation should not directly affect the investigator’s position within the organisation); has skills that include prior investigative knowledge and a working knowledge of employment laws; has strong interpersonal skills to build a rapport with the parties involved and to be perceived as neutral and fair; is detail-oriented; has the right temperament to conduct interviews; can be trusted to maintain confidentiality; is respected within the organisation; and can act as a credible witness.

At this triage stage, an employer may also wish to use the information collected from the complaint to proactively identify potential patterns or systemic issues at an individual, divisional or corporate level and react accordingly. For example, if a company receives a complaint against a supervisor for harassing conduct and that same individual has already been the subject of previous complaints, the company should consider whether it may be appropriate to engage outside counsel to carry out a new investigation to bring objectivity and lend credibility to the review – even if the prior complaints were not ultimately substantiated following thorough internal investigations. Similarly, the engagement of outside counsel is often appropriate where a complaint involves alleged misconduct on the part of a company’s senior management or board members.

There are no statutory minimum qualifications or criteria for someone to conduct a workplace investigation. The employer can simply delegate the investigation task to anyone. However, it is good practice for qualified persons with proper training in workplace investigations to conduct the investigation as these involve intricate issues. It is also important that investigators are fair, unbiased, and impartial. In addition, they should not be related to any parties involved in the investigation.

In complex cases or cases involving a senior or high-ranking employee, the employer should appoint a person with a higher authority or rank in the company to lead and oversee the conduct of the investigation. This also applies in instances where it is foreseeable that the investigation may lead to disciplinary action, summary dismissal of the employee, or a report to an authority.

There are instances when engaging with external parties or professional advisors may be necessary. This is especially the case if the conduct under investigation is serious or widespread, which may lead to regulatory consequences if the employer does not have the expertise to handle the investigation.

A trade union does not have any right to be informed of, or involved in, an investigation by an employer. However, an employee may request that their support person is a trade union member or trade union representative. This is appropriate and should be permitted.

Employers should review the terms of an employment contract, policy or industrial instrument as this may contain terms regarding trade union involvement. In particular, heavily-unionised workplaces may contain enterprise agreements which contain relevant clauses.

The Austrian Labour Constitution Act (ArbVG) does not contain any provisions regarding workplace investigations. The employee has the right to address the works council but is not entitled to have the works council comply with his or her request.

The works council's opportunities for participation are conclusively regulated. Certain investigative or control measures may require the consent or co-determination of the works council.

Under section 96(1)3 ArbVG, the consent of the works council is required if the employer wishes to introduce and maintain control measures or technical systems for monitoring employees that affect human dignity, such as video surveillance or specific staff questionnaires. If there is no works council, the consent of each individual employee is required.

At the request of the involved employee, an employee can be assisted by a member of the trade union delegation, for example, during his or her hearing.

The works council should be informed of an investigation if there is a considerable impact on the company; this will only be the case if the investigation concerns a very serious, important or widespread issue. This information should be communicated as soon as possible and before measures are taken as a result of the investigation. This is only a right to information, not consultation. Moreover, members of the works council may be asked to respect their duty of confidentiality. However, as the enforcement of this duty of confidentiality is difficult, the timing of the information should be chosen wisely so it does not jeopardise the investigation.

No, there is no such right.

The relevant laws and regulations in the PRC have not expressly provided the employer’s obligation to inform the trade union of the internal investigation or the right of the trade union to participate in the employer's internal investigation. In practice, given the confidential nature of internal investigation, the employer usually does not voluntarily inform the trade union of such information. However, in accordance with Article 25 of the Measures for the Supervision of Labor Law by Trade Unions of the PRC, the trade union shall have the right to conduct an investigation if the employer has violated the labor laws and regulations or infringed the legitimate rights and interests of the employee. Therefore, it is still possible that the employer, in the course of the internal investigation, may be investigated by the trade union if it has violated the labor laws and regulations or infringed the legitimate rights and interests of the employee (e.g. being suspected of infringing personal information or privacy).

In addition, if the employer determines that the employee has committed a serious disciplinary offence based on the result of the internal investigation and thus decides to terminate the employment contract unilaterally, it shall notify the trade union of the reasons for termination in advance. If the employer has violated the laws, administrative regulations or the provisions of the employment contract, the trade union is entitled to request the employer to make corrections.

A works council or a trade union does not have a role in the investigation.

Neither the works council nor the trade unions have any right to be informed or involved in the investigation. It is the employer who is responsible for carrying out the investigation. However, when the investigation is triggered due to a works council issuing an alert relating in particular to a “serious and imminent danger”, one member of the works council must be involved in the investigation process.

The works council does not have a general right of co-determination on whether and in what way a workplace investigation is carried out. However, workplace investigations may trigger co-determination rights of the works council in specific cases, as outlined below. If co-determination rights come into consideration, the employer must inform the works council about the investigation to put the works council in a position to assess whether or not co-determination rights are affected.

In connection with workplace investigations, the works council may have a co-determination right in the following cases:

• If e-mail accounts and data are screened by using technical devices that are suitable to monitor the behaviour or performance of employees (section 87 paragraph 1 no. 6, BetrVG).
• If, for example, the employer instructs all or a large group of employees to participate in interviews, the co-determination right of the works council regarding the rules of operation of the establishment and the conduct of employees in the establishment (section 87 paragraph 1 no. 1, BetrVG) may be affected.
• If standardised questionnaires are used in employee interviews, provided they are used for a large group of interviewed employees (section 94, BetrVG).

If co-determination rights exist in the specific case, the works council has the right to co-determine the type and structure of the specific investigative measures used (ie, the relevant investigative measure cannot be carried out without the works council's consent). To avoid any conflicts, the employer should set up, together with the works council, general rules about workplace investigations well ahead of any investigation.

Trade unions have no right of co-determination in workplace investigations.

L.4990/2022 explicitly states that the exercise of employee rights that refer to consulting from representatives or trade unions and protection against any detrimental measure that results from those consultations does not affect the implementation of any legal provisions. The autonomy of social partners and their right to enter into collective agreements regardless of the level of protection provided by L.4990/2022[7] is also unaffected.

Under L.4808/2021, legal persons and associations of persons, including trade unions, that have a legitimate interest in doing so may, with the consent of the complainant, bring an action in the complainant’s name before the competent administrative or judicial authorities. They may also intervene in their defence[8].

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.

No.

There is no specific requirement to constitute a works council for most industries or inform the trade union about an investigation or disciplinary inquiry.

It is common, however, for individuals to share details of the matter with trade union representatives and seek their support. Further, if an employee has the right to be represented or supported by a colleague (for example, if the establishment is covered by the SO Act), the individual may request trade union representatives to support them during inquiry proceedings.

This will depend on the agreement with the works council or trade union. The employee who is the respondent to the investigation may have views on their trade union being informed, aside from any agreement, which should be taken into account under GDPR provisions.

Generally speaking, a workplace investigation does not require the involvement of a trade union (on the assumption that no specific union agreement has been reached at a company level to entitle trade unions to specific forms of consultation or involvement in workplace investigations, which is not common).

According to section 4 of the Workers’ Statute, as stated above, the involvement of the trade union is necessary regarding the installation and use of specific equipment (such as cameras, switchboards, software) that potentially allows the employer to remotely monitor working activity, and which can be done only with prior agreement of the unions (or authorised by the labour inspectorate).  The union agreement must be made before the installation of the system, and therefore would normally be already in place when an investigation starts.

Pursuant to the WB Decree (Art. 4), union representatives (or external unions) should be “heard” before the employer activates a WB reporting channel[1].

A labour union has no legal right to be involved in the investigation. However, if there is a provision in the collective bargaining agreement between the company and the labour union that allows the labour union to be involved in an investigation conducted by the company or to receive disclosure of the results of an investigation, then such a provision should be followed.

There is, in principle, no role for the works council in an "isolated or single" internal investigation. When it comes to structural forms of employee monitoring to measure behaviour (such as video surveillance), the proposed decision to implement such a monitoring system in principle requires the prior approval of the works council.

In addition, according to the Act on the Protection of Whistleblowers,  an employer who is not obliged to set up a works council needs the consent of more than half of the employees when adopting the internal reporting procedure under theAct, unless the substance of the procedure has already been laid down in a collective bargaining agreement.

The law is silent on whether a member of a trade union has the right to be informed or involved in the investigation. Typically, this is dependent on the employee’s contract, handbook or other policies of the employer.

Except if provided expressly under a collective bargaining agreement, the union does not have the right to be involved in the investigation. Given that the investigation is between the employee and the company, it follows that the union does not have any right to participate in the investigation proceedings.

There is no such obligation, unless it is provided for in an internal procedure or, for example, in the applicable collective bargaining agreement. It is neither a recognised practice nor recommended that such persons participate in the investigation.

However, in the event of violations that justify the termination of an employment contract with the employee, the employer should consult with that employee’s union about their intention to immediately terminate any employment contract concluded with that person or to terminate, with notice, the employment contract agreed with him or her for an indefinite term, or apply for consent to terminate the employment contract with an employee who is protected by a union.

Employee representative bodies are not entitled to be informed about or to participate in the preliminary investigation. The works council is only entitled to participate in disciplinary proceedings after a formal accusation has been made against the employee.

A copy of the accusation should be sent to the works council (if any) and if the employee is a trade union member, to the respective trade union. After the instruction phase of the procedure has ended (where the employer has to hear the witnesses identified by the employee in his written defence and file any other sources of information that have been requested), the employer should provide a copy of the disciplinary procedure to the works council (if any) and the respective trade union, if the employee is a member. These employees’ representatives will then have five business days to issue their opinion on the matter.

Finally, a copy of the final decision must also be sent to these bodies.

There is no legal right for the interviewee to be assisted by a representative from the works council.

An employee who is a member of a works council or trade union has the right to seek assistance from the works council or trade union representative (whichever is applicable) and have the works council or trade union involved in resolving the grievances.

For unionised companies, the grievance procedure and the role of the union representative are usually set out in the collective agreement entered into between the company and the works council or trade union. In some organisations, the employee handbook or grievance policy will also state when the trade union representative will be involved in the investigation process.

While a labour union does not have a legal right under Korean law to be informed or involved in the investigation, unless otherwise required under the relevant collective bargaining agreement, there have been instances where the labour union raised complaints that the company did not properly investigate an employee, who is a member of the labour union, particularly if the company took disciplinary action against that employee based on the findings of the investigation. The company should consider such a practical risk when conducting a workplace investigation.

If the investigation was conducted based on a claim filed by an employee to the Grievance Handling Committee (which is a sub-committee of a works council), the members of that committee have a right to be informed of the results of the investigation.

As explained in question 15, employees are not entitled to representation during an investigation. However, if a disciplinary procedure starts as a result of the investigation, employee representatives may be entitled to be informed of the disciplinary procedure and its outcome.

The degree and timing of when employee representatives must be involved will depend on several factors such as:

• the employee’s affiliation to a union;
• if the employee is an employee representative;
• the seriousness of the potential sanction to be imposed; and
• the information rights that the applicable collective bargaining agreement acknowledges regarding employee representatives.

No, but if the employee under investigation is unionised it is appropriate to inform the union about the investigation. If the employer chooses to take action against the employee during, or after, the investigation, the trade union generally needs to be consulted before any final decisions are made.

If the Swedish Whistleblowing Act applies, the employer is not authorised to inform a works council or trade union about the investigation, as it may be in violation of the duty of confidentiality (see question 10).

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.

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.

An authorized trade union, if any, may have the right to be informed or involved in the investigation, depending on the terms of the collective bargaining agreement in place. Even in the absence of such a provision in the collective bargaining agreement, it would still be recommended to inform the trade union of the investigation as a courtesy. We do not have works councils under Turkish employment law.

Aside from the statutory right to be accompanied (see question 15), any further involvement by the works council or trade union would depend on the terms of the relevant works council or trade union recognition agreement.

Employers generally have no obligation to inform employees of their right to union representation or to ask if they would like a union representative present during the interview. Union employees may insist, however, that a union representative attend any investigatory interview that could lead to the employee’s punishment, although the union representative may not interfere with the interview.

In Vietnam, the “trade union” is the only organisation solely dedicated to protecting employees’ legitimate rights and interests. Under the 2012 Labor Code, the term referring to trade unions was changed to “grassroots-level representative organisation of employees”. But the essence of this organisation remained and was later defined as “the executive committee of a grassroots trade union or the executive committee of the immediate upper-level trade union in a non-unionised company”. As such, it could be said that it was old wine in a new bottle.

As required under article 70.1 of Decree No. 145/2020/ND-CP, which serves as a guide to the Labor Code on working conditions and labour relations, when suspecting that an employee has committed a violation of labour discipline, the employer has to make a record of the violation at the time and notify the grassroots-level representative organisation of employees of which the employee is a member, or the legal representative of the employee if they are under 15 years of age. If the employer detects a violation after it has occurred, it will collect evidence to prove it. In this instance, the employer has no obligation to inform or involve the trade union or grassroots-level representative organisation of employees during the workplace investigation stage.

Also, an employee who is a member of the trade union or organisation has the right to seek assistance from this organisation and may authorise the trade union’s representative to represent and get involved in the workplace investigation.

Managing the outcome of the investigation is an important part of the process. The respondent must be informed of the outcome of the investigation as soon as possible after the investigation is completed and the decision-maker has decided how to proceed.

The investigator must decide whether the claims have been substantiated on the balance of probabilities and the decision-maker must decide what disciplinary action, if any, will be taken. Any disciplinary action should be proportionate to the seriousness of the misconduct. Disciplinary action could include a warning, counselling, monitoring of behaviour or termination of employment.

Ideally, the outcome of the investigation should be communicated to the respondent and complainant in writing, setting out the allegations that have been substantiated, unsubstantiated or whether there is insufficient evidence to make a finding.

The employee has no general right to be informed of the results of an investigation. However, if the employer is considering consequences under labour law based on the result of the investigation, such as termination or dismissal, the employee must be informed accordingly.

It is highly recommended to inform the employee under investigation of the outcome. If disciplinary measures are imposed upon him or her, the legal procedure must be followed and the sanction must be imposed or communicated the day after the employer or his delegate has established the wrongdoing of the employee.

There is no legal obligation to inform them of the outcome. Any obligation would come from the company's policies.

There is no explicit stipulation in the laws and regulations in the PRC on this issue. In practice, given the confidentiality of any investigation into a violation, the employer usually will not disclose the investigation result or submit the investigation report to the investigated employee, unless it is explicitly provided in its rules and regulations that the employer is obliged to inform the employee of the investigation result. However, according to the Employment Contract Law of the PRC and the opinions of the mainstream arbitration tribunals and courts, if an employer decides to take disciplinary action against an employee (in particular, termination of employment contract) according to the investigation result, it is generally required to inform the employee of the investigation result. In other words, the employer generally needs to inform the employee of the specific facts based on which the disciplinary action is taken. Failure to do so may result in the generalization of serious violation of the employer's rules and regulations and lead the arbitration tribunals and courts to regard the termination as illegal.

The employer's conclusions from the investigation.

The employee under investigation, like the other employees interviewed and the whistleblower, must be informed that the investigation has been completed. However, there is no obligation to provide them with the report and, for reasons of confidentiality, it is very often best not to do so.

The employer has no general obligation to proactively inform the employee about the outcome of an investigation. However, if personal data was collected, the employee has the right to request certain information: the purpose of the data collection, type of data, recipients of the data, the planned storage period of the data, his right to have the data corrected or deleted, his right to complain to a supervisory authority, and information on the source of the data.

The employer has an obligation, towards the alleged victim but also the alleged perpetrator, to carefully investigate the report and any existing evidence before making decisions. The employee under investigation must be informed about the outcome of the procedure and any measures adopted in this regard. The respective decision must have due justification.

The employer is generally not obliged under Hong Kong law to inform the employee under investigation of the outcome of the investigation absent any express obligation under the employment contract, even where the investigation has led to a decision to terminate the employee. However, to avoid any unnecessary claim of unlawful dismissal or dismissal without a valid reason, the employer should inform the employee of the reason for his or her termination, even if the investigation results may not be shared in full with the employee.

Concerning SH cases, the IC must supply a copy of the preliminary findings to the complainant and accused (where both are employees of the organisation) to allow them to make their representations before final findings and recommendations are shared. The IC's final report with recommendations for disciplinary action, if any, must also be shared with both parties.

For other forms of misconduct, it is not mandatory to share the details of the fact-finding investigation itself. However, if disciplinary action is contemplated and a disciplinary inquiry is necessary against the employee under investigation, the relevant details of the evidence gathered against the individual will need to be shared with him or her as part of the charge sheet. On the other hand, where no disciplinary inquiry is being conducted after an investigation (eg, if there is no merit in the allegations), the employer may choose to not share the investigative findings and only inform the individual that no further action is being taken.

The employee whose actions are the subject of the investigation must be advised of the outcome of the investigation. They are usually provided with a copy of the investigator's report.

If the outcome of the investigation does not lead to a disciplinary procedure, there is no specific obligation for the employer regarding this.

However, to a certain extent, under privacy laws, the employee may exercise his or her right of access to information strictly related to him or her, arising from the investigation (which is, however, a wider privacy issue to be assessed under the GDPR.)

Although there is no legal obligation to report the results of the investigation to the employee, when taking disciplinary action it is generally necessary, from a due process point of view, to explain the facts of the disciplinary action and the results of the investigation, and to allow the employee to explain him or herself. Particularly in the case of serious disciplinary actions such as dismissal, failure to provide an adequate opportunity for an explanation is a possible ground for denying the validity of the disciplinary action.

There are no statutory requirements as to employee feedback in internal investigations. The principle of due care requires an employer to typically confront implicated persons with any allegations that concern them; and provide a draft report on their interviews for feedback, if the investigative findings will form the basis of disciplinary measures. It is good practice to also inform an employee under investigation once the investigation is closed.

The employee under investigation must be informed of the outcome of the investigation as soon as a decision is reached.

The employee under investigation should be informed of the results of the investigation and the basis of the conclusion. It should be included in the first notice or the notice to explain.

He or she must be given feedback about follow-up actions that were undertaken, or reasons why the follow-up actions were not undertaken.

In any case – the feedback must be adapted to the circumstances of each case so as not to reveal too many details or infringe the other interested parties’ rights.

If, further to the conclusion of the investigation, the employer concludes that there are no grounds to enforce disciplinary action against the employee, the employee does not even have to know that they were the subject of an investigation.

However, if the employer does decide to accuse the employee, the employee will be entitled to all the sources of information obtained during the preliminary investigation.

The employee under investigation should be told of the findings that have been made against the employee, the disciplinary action (if any) that will be taken against the employee and any avenue or timeline for the employee to appeal the outcome of the investigation.

There is no legal obligation for a company to disclose the outcome of an investigation to the employee who was subject to it. Having said that, if the company wishes to take disciplinary action against the employee based on the outcome of an investigation, it is required to disclose sufficient detail on the employee’s wrongdoing that is subject to disciplinary action. This information should be provided to the employee before the disciplinary action committee (DAC) hearing to provide the employee with sufficient time to present and defend his or her position during the DAC hearing.

Employees under investigation are not entitled to be informed about the investigation or its outcome. As set out above (see question 11), an employee would have a right to be informed about the outcome of an investigation if the employer takes any disciplinary actions as a consequence of the enquiry.

The reason to disclose the details of the investigation is to allow the employee to adequately defend him or herself from the alleged breaches.

This depends on the outcome of the investigation and the applicable rules.

If the outcome of the investigation leads to termination, the employer will have to disclose some information regarding the reason for termination. If the employee questions the termination, the employer may have to disclose more information in a subsequent dispute. If the outcome of the investigation leads to less invasive measures, such as a warning, there are less extensive requirements to provide information.

If the Swedish Whistleblowing Act applies, the duty of confidentiality and the restrictions on access to and disclosure of personal data must be considered (see question 10). If the investigation is based on the rules in the Swedish Discrimination Act, there are also feedback requirements concerning the involved parties.

Workplace investigations often result in an investigation report that is intended to serve as the basis for any measures to be taken by the company's decisionmakers.

The employee's right to information based on article 8, Swiss Federal Act on Data Protection also covers the investigation report, provided that the report and the data contained therein relate to the employee.[1] In principle, the employee concerned is entitled to receive a written copy of the entire investigation report free of charge (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 et seq, Ordinance to the Federal Act on Data Protection). Redactions may be made where the interests of the company or third parties so require, but they are the exception and must be kept to a minimum.[2]

There is no mandatory information on the outcome of an investigation that must be disclosed to an employee. However, disclosure of the outcome should, at a minimum, include whether an employee did or did not commit a violation. In addition, an employee who has committed a violation should be informed of any disciplinary action, and the grounds for such a decision (such as a violation of the company’s work rules). This enables the employee under investigation to appeal the outcome if it is applicable under the work rules or whistleblowing policy.

In general, the employee under investigation should be adequately informed about the allegations and findings to be able to defend him or herself. If no legal action will be taken against the employee under investigation as a result of the investigation, the employee may be notified regarding the findings and the outcome of the investigation. If the employee will be subject to a legal or administrative action (ie, warning, reprimand, or termination of employment), the formal requirements stemming from the Labour Law will need to be followed.   

The employee would usually get a copy of the investigation report (which would typically have the relevant evidence considered by the investigator annexed to the report, unless the report is privileged). It is not usual practice to allow the employee to make representations on the report before it is finalised.

The report will set out what facts the investigator was able to establish by reference to the available evidence. The investigator’s role is to gather and consider evidence about what did or did not happen, so the employer can understand if there is a case to answer. This is distinct from determining culpability, which is something for the manager conducting the disciplinary hearing (not the investigator) to determine, in addition to deciding any disciplinary sanction.

In general, it is often helpful to provide the complainant and subject of the complaint with a short written communication or verbal communication at the end of an investigation to advise that the investigation has concluded. Where the allegations are unsubstantiated, the communication should convey that no evidence of misconduct or unlawful conduct was found. Where the allegations are substantiated, the results and proposed communication should be reviewed with the legal function, together with potential disciplinary and remedial action, before it is communicated to the complainant and the subject of the complaint.

Where the misconduct alleged poses a high risk to the company from a reputational, operational or legal perspective, and especially where an investigation is conducted by outside counsel, outside counsel should determine, in consultation with the relevant individuals at the company, for example the general counsel, how and with whom to share investigation results and if and how to communicate the outcome to the complainant and the subject of the complaint. This is the case regardless of whether the allegations are found to be substantiated or unsubstantiated.

It is recommended that the employer informs the employee under investigation of the outcome and provides information on a need-to-know basis. Consequently, the employer has the discretion to proceed with any labour disciplinary procedure or actions against the employee based on the outcome of the investigation.