Workplace Investigations

Contributing Editors


Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.

IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.  

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

Choose countries

 

Choose questions

Choose the questions you would like answering, or choose all for the full picture.

11. What information must the employee under investigation be given about the allegations against them?

11. What information must the employee under investigation be given about the allegations against them?

Flag / Icon

Australia

  • at People + Culture Strategies
  • at People + Culture Strategies
  • at People + Culture Strategies

To ensure procedural fairness, the allegations must be put to the respondent in writing in advance of the investigation interview. The allegations must be specific, but the respondent does not need to be provided with a copy of the original complaint. The respondent should also be informed that if the allegations are substantiated they may result in disciplinary action up to and including the termination of the employee’s employment.

Last updated on 15/09/2022

Flag / Icon

Austria

  • at GERLACH
  • at GERLACH Rechtsanwälte

The purpose of internal investigations would be jeopardised by fully informing a suspected employee beforehand, as it would allow him or her to hide or destroy possible evidence, plan his testimony or coordinate with other employees.

There is no legal requirement to inform the employee of the allegations or suspicions.

Last updated on 29/09/2023

Flag / Icon

Belgium

  • at Van Olmen & Wynant

In general, the employee should be informed that there is an ongoing investigation (unless this could jeopardise the investigation, in which case disclosure could be postponed until this is no longer the situation). Next, before imposing measures or sanctions, the employee should be allowed to be heard or to give his or her version of the facts. Of course, the employee can only do this if he or she is aware of the facts being investigated. It is not necessary to give the employee a full insight into the investigation, only the necessary facts that allow him or her to offer a defence are sufficient.

Last updated on 15/09/2022

Flag / Icon

Brazil

  • at CGM
  • at CGM

There is no obligation to inform an employee under investigation that this is the case, and it should not happen automatically.

While some policies require that the investigated employee be informed about the allegations against them at the beginning of the investigation, from a local perspective it is recommended that the accused employee be notified about the existence of the allegations if, after a reasonable review, there are elements that suggest that the accusation may be material.

In this context, the employee should be informed about the accusation and be allowed to confirm, deny, provide further context or justify each reported or identified event; offer evidence; and indicate persons or sources of information that could corroborate his or her defence. Information about the accusation must be focused on facts rather than on how the company obtained the information.

If the accusation is found to be groundless after initial review, involving the accused employee at the beginning of the process may have triggered unjust and unnecessary stress and a disruption in the employment relationship that may not be satisfactorily repaired by a determination that the accusation was void. This may result in a legal liability for the company or HR issues that could otherwise have been avoided.

Last updated on 14/09/2023

Flag / Icon

China

  • at Jingtian & Gongcheng
  • at Jingtian & Gongcheng
  • at Jingtian & Gongcheng
  • at Jingtian & Gongcheng

Although there are no explicit provisions of law or policy requiring employers to provide specific information of allegations to investigated employees, in practice, at the early stage of investigation, in order to avoid alerting the investigated employee and reduce the possibility that the investigated employee may destroy the relevant evidence, the employer usually will not disclose the information of allegations to the investigated employee at the beginning of investigation. At the later stage of an investigation, when the employer has already obtained main evidence, the employer usually will properly disclose to the investigated employee the allegations that are clearly known by the employer and have sufficient evidence, and listen to the counterparty's opinions or argument, for the purpose of obtaining more information or getting the employee's confession.

Last updated on 29/11/2023

Flag / Icon
Finland

Finland

  • at Roschier
  • at Roschier

The process must be transparent and impartial, and therefore all the information that may influence the conclusions made during the investigation should be shared with the employee.

Last updated on 15/09/2022

Flag / Icon

France

  • at Bredin Prat
  • at Bredin Prat

According to the French data protection authority, the employee under investigation must be informed of the name of the person in charge of the investigation, the alleged facts that have led to the whistleblowing alert and their rights to access and rectify data collected about them. This information must be given as soon as the data collection starts, before the interviews, as per GDPR principles.

Last updated on 15/09/2022

Flag / Icon

Germany

  • at Hengeler Mueller
  • at Hengeler Mueller
  • at Hengeler Mueller

In principle, the employer does not have to inform the employees about the investigation. Furthermore, there is no obligation to inform the "suspect" about the specific content of the workplace investigation itself and the allegations against him.

However, if personal data relating to the employee is collected and reviewed, the employee must be informed under German data protection principles (see question 7).

If the employer considers issuing a notice of termination based on the suspicion of wrongdoing, the employee must be allowed to comment on the allegations against him before receiving the termination notice. This requires that the employee be properly informed about the allegations and evidence against him. However, until the time of such a hearing, which usually follows the workplace investigation, there is no obligation on the part of the employer to inform the employee concerned about ongoing investigations.

Last updated on 15/09/2022

Flag / Icon

Greece

  • at Karatzas & Partners
  • at Karatzas & Partners
  • at Karatzas & Partners
  • at Karatzas & Partners

As a matter of general principle, employees under investigation must have access to the necessary information to be able to defend themselves, in the context of their fundamental right to a fair trial and hearing.

Moreover, from a data protection perspective, they may be entitled to access their personal data in the respective files.

The above rights must be balanced with confidentiality and the need to safeguard the completion of the investigation and to protect the complainant from retaliation.

According to L.4990/2022, all data and information as well as the identity of the complainant are confidential, and any disclosure is only permitted where required by the EU or national legislation or during court proceedings, and only if it is necessary for the protection of the defence rights of the employee under investigation. The section of L.4808/2021 for the elimination of workplace violence and harassment does not regulate this specifically but provides a general obligation for confidentiality.

Last updated on 03/04/2023

Flag / Icon

Hong Kong

  • at Slaughter and May
  • at Slaughter and May
  • at Slaughter and May

An employer’s internal policies or the employment contract may provide that an employee under investigation should be given certain information concerning the allegations raised against him or her. Such policies or terms should be followed and failure to do so may result in a claim for breach of contract or constructive dismissal by the employee. Even where there are no express provisions, the employer still owes an implied obligation of trust and confidence towards the employee at common law, which requires the employer not to, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between itself and the employee.[1] In the context of an internal investigation, the implied duty would require the employer to conduct the investigation and reach its findings reasonably and rationally following the evidence available and in good faith. This would normally require that sufficient information about the allegations made against the employee be provided to him or her such that he or she has the opportunity to properly respond to the allegations before any disciplinary action is taken or any decision about his or her employment is made.

 

[1] Malik v Bank of Credit and Commerce International SA (In Liquidation) [1998] AC 20.

Last updated on 15/09/2022

Flag / Icon

India

  • at Trilegal
  • at Trilegal
  • at Trilegal

As mentioned earlier, workplace investigations are normally a precursor to the actual disciplinary process against an employee. If the individual is being suspended during the investigation, the employer is only expected to inform the individual that they are being suspended on account of an ongoing investigation along with the broad nature of allegations or concerns, and does not need to disclose specific details about the allegations until the appropriate time. Further details may be provided at the investigation stage itself when the employee may be interviewed, or at the subsequent disciplinary inquiry.

Where a disciplinary process is necessary and initiated (after the investigation), the employee will have to be given a charge sheet or notice setting out the allegations against the individual in detail and be provided with an opportunity to submit an explanation. 

In sexual harassment investigations, the SH Act mandatorily requires the IC to submit a copy of the complaint to the accused. Further, the accused should be informed of the requirement to file his or her reply to the complaint along with a list of supporting documents, evidence, names and addresses of witnesses, etc, and the timelines for submitting his response in defence.

Last updated on 15/09/2022

Flag / Icon
Ireland

Ireland

  • at Ogier
  • at Ogier

Under the fair procedures outlined above, details of the allegations or complaints against the employee should be put to them to enable them to fully respond to the allegations raised. The employee should also be provided with any relevant policies pertaining to the allegations against them, along with all documentary evidence of the allegations and the specific terms of reference that define the scope of the investigation. The employee should also be informed of their right to be represented, see question 15.

Last updated on 11/10/2023

Flag / Icon

Italy

  • at BonelliErede
  • at BonelliErede

From an employment law perspective, our legal system does not provide a specific duty for an employer to inform employees that a workplace investigation is in progress.

In addition, disclosing such information could put at risk the outcome of the workplace investigation (eg, destruction of evidence), and it would therefore be arguable that no information should be provided to employees.

On the other hand, if, upon completion of the investigation, the employer decides to bring disciplinary action against the employee, then the latter must be informed of the complaints with a letter stating the procedure (see questions 3 and 12).

Last updated on 15/09/2022

Flag / Icon

Japan

  • at Mori Hamada & Matsumoto

There are no specific legal stipulations or requirements regarding information, etc, that must be provided to employees who are the subject of an investigation.

Last updated on 15/09/2022

Flag / Icon

Netherlands

  • at De Brauw Blackstone Westbroek
  • at De Brauw Blackstone Westbroek
  • at De Brauw Blackstone Westbroek

An implicated person is typically provided with a summary description of the scope of the investigation and, hence, the allegations against such an employee (if any). This is usually done in the interview invite sent to the relevant interviewee, which also provides an opportunity to prepare for an interview and (if relevant) seek legal advice.

Last updated on 15/09/2022

Flag / Icon
Nigeria

Nigeria

  • at Bloomfield LP

An employee must be given the full details of the allegations against him or her to enable the employee to make adequate representations against the complaints made against him or her.

Last updated on 15/09/2022

Flag / Icon

Philippines

  • at Villaraza & Angangco

During the fact-finding stage of the investigation, the employees under investigation are not generally entitled to information concerning the conduct of the investigation. It is the prerogative of management to involve the employee under investigation during the fact-finding stage. When, however, the employer determines that an administrative disciplinary process must proceed, the employee’s right to due process attaches. As such, due process includes the right to be informed of the grounds relied upon by the employer and the opportunity to be heard. The first notice or notice to explain should specifically inform the employee of the charge against him or her.

Last updated on 26/01/2023

Flag / Icon

Poland

  • at WKB Lawyers
  • at WKB Lawyers
  • at WKB Lawyers

There is no specific mandatory information that should be given to an employee who is the subject of an internal investigation. However, it is common practice that he or she must know what the allegations against them are, on what grounds these allegations are formulated and be given a right to discuss these allegations and the evidence or grounds for these allegations.

Last updated on 20/04/2023

Flag / Icon

Portugal

  • at Uría Menéndez - Proença de Carvalho

If, before taking disciplinary action, the employer decides to open a preliminary investigation phase, the employee does not have to be informed.

Only when the preliminary investigation leads to a formal accusation will the employee be entitled to know that enquiries were carried out and the source of the facts (eg, witnesses, documents).

However, if an employer does not need to open a formal preliminary investigation phase, it only has to serve the accusation notice to the employee.

As a rule, employees will only know that they are being investigated if they are suspended or when they are notified of the accusation.

Last updated on 15/09/2022

Flag / Icon
Singapore

Singapore

  • at Rajah & Tann Singapore
  • at Rajah & Tann Singapore
  • at Rajah & Tann

There is no specific list of information about the allegations against the employee under investigation that must be provided to the employee under investigation. However, the information provided to the employee must be sufficiently clear and specific so that the employee understands the case being made against him or her and can respond to it. The employee should also be made aware of the evidence against him or her and be given a reasonable opportunity to respond.

Last updated on 15/09/2022

Flag / Icon

South Korea

  • at Kim & Chang
  • at Kim & Chang
  • at Kim & Chang
  • at Kim & Chang

There is no requirement to notify an employee under investigation concerning the allegations against him or her when requesting cooperation with a workplace investigation (eg, requesting the employee’s consent to review electronic data, or requesting an interview).

However, the company may strategically consider explaining the general purpose of the investigation before requesting consent to review electronic data or when requesting an interview. This may help increase the likelihood of cooperation and also reduce the risk of the employee raising objections to the company’s findings from the investigation by saying he or she was not properly informed of the purpose of the investigation, or that the investigation was conducted in a coercive manner.

Last updated on 15/09/2022

Flag / Icon

Spain

  • at Uría Menéndez
  • at Uría Menéndez

It is not necessary to inform an investigated employee about an enquiry or of the allegations made against him or her. The obligation to disclose would only arise when:

  • interviewing the employee would be the least intrusive means to investigate the facts; or
  • if disciplinary measures are implemented as a result of the investigation. Since employees are entitled to challenge all disciplinary measures against them, they could request a court of law to disclose all the findings of the investigation, to assess if these findings could be useful to challenge the disciplinary measure.
Last updated on 15/09/2022

Flag / Icon

Sweden

  • at Mannheimer Swartling
  • at Mannheimer Swartling
  • at Mannheimer Swartling

According to article 14 of the GDPR, no information must be provided. The exemption in article 14.5(b) applies to the extent the obligation to provide such information is likely to render impossible or seriously impair the objectives of the processing of the personal data of the employee under investigation (ie, to diligently investigate the suspected irregularity).

If the Swedish Whistleblowing Act applies, information about where the personal data processed originates from may not be provided under article 14 of the GDPR, as the personal data must remain confidential subject to obligations under the Swedish Whistleblowing Act.

In addition to the above, an investigation should, to the extent possible and suitable, be characterised by the principles in ECHR (particularly articles 6 and 8). The employee under investigation should, among other things, be presented with sufficient information to safeguard his or her interests and be allowed to respond to the allegations. The investigation must also be compliant with the work environment responsibilities that the employer has concerning the involved parties (see questions 17 and 20).

Last updated on 15/09/2022

Flag / Icon

Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

As a result of the employer's duty of care (article 328, Swiss Code of Obligations), employees under investigation have certain procedural rights. These include, in principle, the right of the accused to be heard. In this context, the accused has the right to be informed at the beginning of the questioning about the subject of the investigation and at least the main allegations and they must be allowed to share their view and provide exculpatory evidence.[1] The employer, on the other hand, is not obliged to provide the employee with existing evidence, documents, etc, before the start of the questioning.[2]

Covert investigations in which employees are involved in informal or even private conversations to induce them to provide statements are not compatible with the data-processing principles of good faith and the requirement of recognisability, according to article 4 of the Swiss Federal Act on Data Protection.[3]

Also, rights to information arise from the Swiss Federal Act on Data Protection. In principle, the right to information (article 8, Swiss Federal Act on Data Protection) is linked to a corresponding request for information by the concerned person and the existence of data collection within the meaning of article 3 (lit. g), Swiss Federal Act on Data Protection. Insofar as the documents from the internal investigation recognisably relate to a specific person, there is in principle a right to information concerning these documents. Subject to certain conditions, the right to information may be denied, restricted or postponed by law (article 9 paragraph 1, Swiss Federal Act on Data Protection). For example, such documents and reports may also affect the confidentiality and protection interests of third parties, such as other employees. Based on the employer's duty of care (article 328, Swiss Code of Obligations), the employer is required to protect them by taking appropriate measures (eg, by making appropriate redactions before handing out copies of the respective documents (article 9 paragraph 1 (lit. b), Swiss Federal Act on Data Protection)).[4] Furthermore, the employer may refuse, restrict or defer the provision of information where the company’s interests override the employee’s, and not disclose personal data to third parties (article 9 paragraph 4, Swiss Federal Act on Data Protection). The right to information is also not subject to the statute of limitations, and individuals may waive their right to information in advance (article 8 paragraph 6, Swiss Federal Act on Data Protection). If there are corresponding requests, the employer must generally grant access, or provide a substantiated decision on the restriction of the right of access, within 30 days (article 8 paragraph 5, Swiss Federal Act on Data Protection and article 1 paragraph 4, Ordinance to the Federal Act on Data Protection).

 

[1] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.

[2] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.

[3] Roger Rudolph, Interne Untersuchungen: Spannungsfelder aus arbeitsrechtlicher Sicht, SJZ 114/2018, p. 390.

[4] Claudia Götz Staehelin, Unternehmensinterne Untersuchungen, 2019, p. 37.

Last updated on 15/09/2022

Flag / Icon

Thailand

  • at Chandler MHM
  • at Chandler MHM

The subject employee(s) should be informed of the details of the allegations, such as the details of wrongdoing or violations, made against them. This creates a fair opportunity for them to clarify themselves and defend against such allegations properly. Also, if there is any evidence that needs clarification from the employee, it should be shown to the employee.

Last updated on 15/09/2022

Flag / Icon

Turkey

  • at Paksoy
  • at Paksoy
  • at Paksoy
  • at Paksoy

Informing the employee under investigation on the subject, purpose and possible consequences of the investigation need to be evaluated by the investigation team before the interview. As a general principle, the interviewer is expected to share the information he obtained on the case with the employee, and ask for confirmation or clarification on these matters. The employee under investigation may be subject to an interview to gain information or as a confrontation if there is concrete evidence. If the evidence in hand is not based on concrete and material grounds, it would be more appropriate not to lead the interview to a confession, but inform the employee of the possible allegations. However, if the available evidence is based on concrete and material grounds, the interviewer may confront the interviewee by sharing the information that was gathered during the investigation in an attempt to obtain a confession.

Last updated on 15/09/2022

Flag / Icon

United Kingdom

  • at Slaughter and May
  • at Slaughter and May

The employee must be able to effectively challenge the allegations against them. They should be given the terms of reference for the investigation, and any relevant documentary evidence, including copies of witness statements.

Last updated on 15/09/2022

Flag / Icon

United States

  • at Cravath, Swaine & Moore
  • at Cravath, Swaine & Moore
  • at Cravath, Swaine & Moore

The investigator must disclose to the employee under investigation the purpose of the investigation and, where the investigator is in-house or outside counsel, he or she should disclose that the company is the client.

Last updated on 15/09/2022

Flag / Icon

Vietnam

  • at Le & Tran Law Corporation
  • at Le & Tran Law Corporation

There is no legal requirement as to what particular information should be stated in the allegations; however, such information must be provided to the employee under investigation. The information provided by the employer to the employee must be sufficiently clear and specific so that the latter understands the case or alleged issues against him or her and can respond to it.

Last updated on 25/09/2023

16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?

16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?

Flag / Icon

Australia

  • at People + Culture Strategies
  • at People + Culture Strategies
  • at People + Culture Strategies

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.

Last updated on 25/09/2023

Flag / Icon

Austria

  • at GERLACH
  • at GERLACH Rechtsanwälte

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.

Last updated on 29/09/2023

Flag / Icon

Belgium

  • at Van Olmen & Wynant

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.

Last updated on 15/09/2022

Flag / Icon

Brazil

  • at CGM
  • at CGM

No, there is no such right.

Last updated on 14/09/2023

Flag / Icon

China

  • at Jingtian & Gongcheng
  • at Jingtian & Gongcheng
  • at Jingtian & Gongcheng
  • at Jingtian & Gongcheng

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.

Last updated on 29/11/2023

Flag / Icon
Finland

Finland

  • at Roschier
  • at Roschier

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

Last updated on 15/09/2022

Flag / Icon

France

  • at Bredin Prat
  • at Bredin Prat

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.

Last updated on 15/09/2022

Flag / Icon

Germany

  • at Hengeler Mueller
  • at Hengeler Mueller
  • at Hengeler Mueller

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.

Last updated on 15/09/2022

Flag / Icon

Greece

  • at Karatzas & Partners
  • at Karatzas & Partners
  • at Karatzas & Partners
  • at Karatzas & Partners

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].

 

[7] Law 4990/2022 art.5 par.2 (e)

[8] Law 4808/2021 art.14

Last updated on 03/04/2023

Flag / Icon

Hong Kong

  • at Slaughter and May
  • at Slaughter and May
  • at Slaughter and May

Unless the employment contract or the relevant internal policies specify otherwise, there is no automatic right under Hong Kong law for a works council or trade union to be informed or involved in a workplace investigation.

Last updated on 15/09/2022

Flag / Icon

India

  • at Trilegal
  • at Trilegal
  • at Trilegal

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.

Last updated on 15/09/2022

Flag / Icon
Ireland

Ireland

  • at Ogier
  • at Ogier

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.

Last updated on 11/10/2023

Flag / Icon

Italy

  • at BonelliErede
  • at BonelliErede

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].


[1] According to certain guidelines issued by the industrial trade association (Confindustria), the involvement should be purely for information purposes.

Last updated on 10/01/2024

Flag / Icon

Japan

  • at Mori Hamada & Matsumoto

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.

Last updated on 15/09/2022

Flag / Icon

Netherlands

  • at De Brauw Blackstone Westbroek
  • at De Brauw Blackstone Westbroek
  • at De Brauw Blackstone Westbroek

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.

Last updated on 27/11/2023

Flag / Icon
Nigeria

Nigeria

  • at Bloomfield LP

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.

Last updated on 15/09/2022

Flag / Icon

Philippines

  • at Villaraza & Angangco

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.

Last updated on 26/01/2023

Flag / Icon

Poland

  • at WKB Lawyers
  • at WKB Lawyers
  • at WKB Lawyers

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.

Last updated on 20/04/2023

Flag / Icon

Portugal

  • at Uría Menéndez - Proença de Carvalho

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.

Last updated on 15/09/2022

Flag / Icon
Singapore

Singapore

  • at Rajah & Tann Singapore
  • at Rajah & Tann Singapore
  • at Rajah & Tann

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.

Last updated on 15/09/2022

Flag / Icon

South Korea

  • at Kim & Chang
  • at Kim & Chang
  • at Kim & Chang
  • at Kim & Chang

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.

Last updated on 15/09/2022

Flag / Icon

Spain

  • at Uría Menéndez
  • at Uría Menéndez

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.
Last updated on 15/09/2022

Flag / Icon

Sweden

  • at Mannheimer Swartling
  • at Mannheimer Swartling
  • at Mannheimer Swartling

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).

Last updated on 15/09/2022

Flag / Icon

Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

In general, works councils and trade unions are not very common in Switzerland and there are no statutory rules that would provide a works council or trade union a right to be informed or involved in an ongoing internal investigation. However, respective obligations might be foreseen in an applicable collective bargaining agreement, internal regulations or similar.

Last updated on 15/09/2022

Flag / Icon

Thailand

  • at Chandler MHM
  • at Chandler MHM

Thai labor laws do not require a workplace investigation to involve participation from trade unions or labour unions. However, it is possible for labour unions established under the Labor Relation Act BE. 2518 (1975) to submit a demand for a collective bargaining agreement (CBA) with employers to get a seat at the table. There was a case where a management union made a CBA with the employer wherein the president of the management union would be involved in any investigation of any manager, who is a union member, under investigation. In that case, the employer must comply with the CBA by informing the president and allowing the president to participate in the investigations.

Last updated on 15/09/2022

Flag / Icon

Turkey

  • at Paksoy
  • at Paksoy
  • at Paksoy
  • at Paksoy

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.

Last updated on 15/09/2022

Flag / Icon

United Kingdom

  • at Slaughter and May
  • at Slaughter and May

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.

Last updated on 15/09/2022

Flag / Icon

United States

  • at Cravath, Swaine & Moore
  • at Cravath, Swaine & Moore
  • at Cravath, Swaine & Moore

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.

Last updated on 15/09/2022

Flag / Icon

Vietnam

  • at Le & Tran Law Corporation
  • at Le & Tran Law Corporation

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.

Last updated on 25/09/2023