Workplace Investigations
Contributing Editors
Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as of the importance of ESG rises. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimal operation, governance and legal exposure of every business.
IEL’s Guide to Workplace Investigations examines key issues that organisations need to consider as they initiate, conduct and conclude investigations in 29 major jurisdictions around the world.
Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.
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01. What legislation, guidance and/or policies govern a workplace investigation?
02. How is a workplace investigation usually commenced?
03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?
04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?
05. Can the employee under investigation bring legal action to stop the investigation?
06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?
07. What data protection or other regulations apply when gathering physical evidence?
08. Can the employer search employees’ possessions or files as part of an investigation?
09. What additional considerations apply when the investigation involves whistleblowing?
10. What confidentiality obligations apply during an investigation?
11. What information must the employee under investigation be given about the allegations against them?
12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?
13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?
14. When does privilege attach to investigation materials?
15. Does the employee under investigation have a right to be accompanied or have legal representation during 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?
17. What other support can employees involved in the investigation be given?
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18. What if unrelated matters are revealed as a result of the investigation?
19. What if the employee under investigation raises a grievance during the investigation?
20. What if the employee under investigation goes off sick during the investigation?
21. How do you handle a parallel criminal and/or regulatory investigation?
22. What must the employee under investigation be told about the outcome of an investigation?
23. Should the investigation report be shared in full, or just the findings?
24. What next steps are available to the employer?
25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?
26. How long should the outcome of the investigation remain on the employee’s record?
27. What legal exposure could the employer face for errors during the investigation?
18. What if unrelated matters are revealed as a result of the investigation?
18. What if unrelated matters are revealed as a result of the investigation?
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Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
During the investigation, unrelated matters can come to light, usually made by the complainant or a witness during the interview process. Unrelated matters may take the form of further complaints against the respondent (but on grounds that are outside the scope of the current investigation), or entirely different complaints.
An employer should first assess the nature of the new allegations. Entirely unrelated matters should be dealt with separately. However, if the matter relates to the respondent it may be appropriate to obtain consent from the respondent and complainant for the scope of the investigation to be widened. It is important to remember that all allegations must be put to the respondent and they must be given an opportunity to respond.
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Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
The employer must decide how to deal with this information. Possible options are to initiate separate and unrelated investigations or to extend the ongoing investigations.
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Belgium
Belgium
- at Van Olmen & Wynant
If the investigation is not protected by confidentiality towards the employer (e.g. the prevention advisor cannot disclose confidential information to the employer), it could result in further measures taken by the employer or lead to a new investigation.
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Brazil
Brazil
- at CGM
- at CGM
If unrelated matters are revealed as a result of the investigation, the company must be notified and must start a new investigation regarding them per the appropriate rules, without affecting the original investigation.
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China
China
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
If any matter unrelated to this investigation is revealed during the investigation and the matter is suspected of violating regulations, the employer may comprehensively consider whether it is necessary to investigate the new matter. If the employer assesses that a combined investigation will seriously affect and hinder the progress of the investigation or complicate the investigation, the employer can handle the unrelated matters through separate investigations.
In addition, Article 6 of the Personal Information Protection Law of the PRC requires that the processing of personal information shall be for a specific and reasonable purpose and shall be directly related to the purpose of the processing and shall adopt the method with minimum impact on individuals' rights and interests. If the result of the investigation reveals unrelated personal information, it means that the collection and storage of such personal information are unrelated to the purpose of the processing. According to paragraph 1 of Article 47 of the Personal Information Protection Law of the PRC, the employer as the personal information processor shall take the initiative to delete personal information. If the employer fails to delete such information, the employee is entitled to request for deletion.
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Finland
Finland
- at Roschier
- at Roschier
If they are related to the work or workplace, the employer will handle the emerging matters separately. In internal investigations, the employer is allowed to use any material legally available.
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France
France
- at Bredin Prat
- at Bredin Prat
Unrelated matters revealed during the investigation do not necessarily mean that another investigation will be opened. Nevertheless, if reprehensible acts unrelated to the current investigation are revealed, the employer will need to take action and sanction the perpetrator (after checking the facts). Sometimes the only way to check the facts is to carry out another investigation on a separate matter. However, the investigation team may also consider if there is enough connection between the matters to widen the scope of the current internal investigation.
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Germany
Germany
- at Hengeler Mueller
- at Hengeler Mueller
- at Hengeler Mueller
There are no specific rules if unrelated matters are revealed during the investigation. If, in the course of the workplace investigation, new facts are discovered, the same principles apply as for the original reason for the investigation and the employer should consider whether to extend the investigation to the new matter too.
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Greece
Greece
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
If any unrelated matters are revealed as a result of an investigation and are of legal importance, the applicable legal provisions must be implemented and any relevant policies or agreements between the involved parties should be taken into account. For example, if the reporting procedure sheds light on other criminal acts, criminal law procedure may be followed if the matter is reported to the competent authorities.
If these unrelated matters fall under the ambit of another company’s policies, the relevant procedures may also be followed separately. However, the employee under investigation must be allowed to defend him or herself, otherwise he or she may raise complaints relating to the procedural guarantees of the investigation.
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Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
If unrelated matters are revealed during the investigation, the employer should consider whether an investigation is needed. If yes, the employer should decide whether it is appropriate to incorporate the new matters into the scope of the existing investigation by expanding the terms of reference. However, it may not be appropriate to do so if different individuals are concerned or such inclusion would unduly complicate or delay the progress of the existing investigation. If that is the case, the employer should commence a separate investigation.
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India
India
- at Trilegal
- at Trilegal
- at Trilegal
Where unrelated matters are revealed during, or because of, the investigation, the course to be adopted may depend on several factors. Normally, if additional instances of misconduct are revealed against the same accused employee, even if they are unrelated to the original investigation, it would be advisable to independently investigate those issues too, to ensure that there are comprehensive grounds for any future disciplinary inquiry or action. If unrelated matters are revealed against other stakeholders involved in the investigation – for example, a forensic review reveals that the complainant or some witnesses have themselves potentially engaged in some other form of policy breach – whether or not those issues are investigated (as well as the timing of such investigation) would need to be decided on a case-by-case basis. Issues to consider include whether these matters affect the credibility of their statements, point at some form of other conspiracy, or create the risk of retaliation claims at a later date.
In SH matters, however, if the complaint involves instances of sexual harassment as well as other forms of general harassment or misconduct, to the extent such other issues aren't linked to the instances of sexual harassment (eg, creation of a hostile work environment for the complainant), these other concerns should preferably not be investigated by the IC and instead should be referred to the employer to address, as per its general grievance-redressal mechanisms.
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Ireland
Ireland
- at Ogier
- at Ogier
If an investigator finds other issues that are outside the scope of the terms of reference, these should not be ignored but equally should not be included as part of the investigation, as they are beyond the remit of the investigation that was established at the beginning. An investigator should identify the other matters that may require further action and report these to the employer separately so as not to conflate issues.
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Italy
Italy
- at BonelliErede
- at BonelliErede
If further misconduct (unrelated to the investigation matters) is revealed, the company may start a new investigation.
Furthermore, even if the employee has a contractual duty to provide the information requested by the employer, one limit to this principle could be, for example, self-incriminating statements of the employee acting as a witness. However, if an employee nevertheless makes self-incriminating statements, the company could decide to start a new investigation.
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Japan
Japan
- at Mori Hamada & Matsumoto
Even if a matter arises that is not subject to the investigation, it can be used as an opportunity to conduct another investigation.
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Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
If the investigation yields unrelated matters, the employer will need to decide whether such matters should be followed up in the same or a separate investigation. If such matters include new allegations against an employee that are already involved in the investigation, the employer should, before interviewing (or at the start of such an interview) inform the implicated employees of the relevant new allegations that are the subject of the investigation.
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Nigeria
Nigeria
- at Bloomfield LP
Where unrelated matters are revealed as a result of the investigation, the body investigating the employee is expected to inform the employee of the new matters and give him adequate time to respond.
However, there are exceptional cases where a crime is revealed during an investigation. In such instances, the employer is required to report its findings to the police for investigation and possible prosecution.
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Philippines
Philippines
- at Villaraza & Angangco
If unrelated matters are revealed because of a workplace investigation, the employer may look into the new matter and then determine whether there are sufficient grounds to proceed with an administrative disciplinary process for the new matter.
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Poland
Poland
- at WKB Lawyers
- at WKB Lawyers
- at WKB Lawyers
It depends on the circumstances of the revealed issue and the employer’s compliance culture. Normally, if a new issue is revealed during the investigation, it should be analysed and investigated if appropriate.
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Portugal
Portugal
- at Uría Menéndez - Proença de Carvalho
If new facts arise as a result of the investigation and they are relevant, the employer may include them in the accusation. If, however, the new facts are revealed after the accusation has been served, the employer will have to prepare an addendum to the initial accusation and the employee will be able to use the same defence rights against that addendum.
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Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
If unrelated matters that require further investigation are revealed as a result of the investigation, the employer should take the necessary steps to investigate these matters, where relevant, under the employer’s grievance reporting, investigation and disciplinary processes. This should be done separately and independently from the existing investigation. Please note that section 424 of the Criminal Procedure Code imposes a legal duty on any person who is aware that another has committed certain specified offences to "immediately" report the matter to the police, "in the absence of reasonable excuse" not to do so. Failure to comply with this requirement is punishable with imprisonment for up to six months, and/or a fine.
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South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
Sometimes, the company discovers other potential misconduct in addition to the specific allegations that trigger a workplace investigation. No law limits the scope of the company’s investigation to the allegations that were initially raised.
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Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
The issue with revealing unrelated matters to the investigation is that it may jeopardise the entire enquiry. If the unrelated matters are private or the disclosure is construed as a breach of employees’ fundamental rights, then the materials gathered during the investigation could be considered to be unlawfully obtained and would not be admitted as evidence in court.
Moreover, the employee could seek damages and a fine could be imposed on the company for breaching its employee’s rights.
Finally, if unrelated matters are revealed, it could be a clear sign that the company has failed to conduct a diligent investigation and use the least intrusive means available to it (see question 1). One of the reasons to minimise the number of employees conducting the investigation (see question 4) is to reduce damages if matters unrelated to the investigation are revealed.
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Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
According to the GDPR, personal data can only be processed for specified, explicit and legitimate purposes and may not be further processed in a manner that is incompatible with those purposes. This imposes restrictions on the use of material from previous investigations in new investigations when the material was collected for other purposes. It is, therefore, necessary to ensure whether the new matter relates to the investigation and falls within the purpose of the investigation. If the new matter is unrelated to the investigation and does not fall within the purpose of the investigation, the identified information may not be processed under the GDPR.
Except for what is stated above, no regulation limits how the employer can use information regarding unrelated matters. Unrelated matters may be a myriad of different things, and could in some instances just be discarded, while in other situations the information may invoke a responsibility to act for the employer (eg, if the unrelated matters concern work environment issues or other severe misconduct by an employee who is not the target of the investigation). Furthermore, the employer may always use any revealed information (unrelated or not) as evidence in a court of law, since the principle of free examination of evidence applies.
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Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
There are no regulations in this regard in the Swiss employment law framework. However, in criminal proceedings, the rules regarding accidental findings apply (eg, article 243, Swiss Criminal Procedure Code for searches and examinations or article 278, Swiss Criminal Procedure Code for surveillance of post and telecommunications). In principle, accidental findings are usable, with the caveat of general prohibitions on the use of evidence.
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Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
Subject to the grievance protocol in place, any matter that emerges during the investigation should be handled separately as a fresh report of potential misconduct that needs further investigation.
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Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
If an unrelated matter is revealed during the investigation, an independent assessment needs to be made as to whether this new matter requires to be included in the same internal investigation, or a separate/new one should be commenced.
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United Kingdom
United Kingdom
- at Slaughter and May
- at Slaughter and May
These should typically be disregarded by the investigator. From a data protection perspective, the ICO’s position is that other information collected during an investigation should be disregarded and, where feasible, deleted unless it reveals information that no reasonable employer could be expected to ignore. In those circumstances, the employer should arrange for an independent third party to determine whether a separate investigation into unrelated matters is needed.
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United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
Where new issues or claims arise during an ongoing workplace investigation, the investigator should discuss with in-house counsel whether the new issues or claims should be separately investigated and if so, by whom, or if instead those new issues or claims are sufficiently related to the current review that they can be investigated in parallel and incorporated into the ongoing fact-gathering process.
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Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
If unrelated matters are revealed during the investigation, the employer should consider whether an investigation is needed. If necessary, the employer should decide whether it is appropriate to incorporate the new matters into the scope of the existing investigation by expanding the terms of reference. However, such action may not be appropriate if different individuals are involved or the inclusion of a new unrelated matter would unduly complicate or delay the progress of the existing investigation. If that is the case, the employer should investigate that matter separately.
Also, as detailed in article 19 of the 2015 Criminal Code of Vietnam, there is a legal duty on any person who is aware that a certain violation is being committed or has been committed to report it to the police unless otherwise provided for under law. Failure to comply with this requirement may lead to criminal liability for the offender.
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Contributors
Australia
People + Culture Strategies
Austria
GERLACH
Belgium
Van Olmen & Wynant
Brazil
CGM
China
Jingtian & Gongcheng
Finland
Roschier
France
Bredin Prat
Germany
Hengeler Mueller
Greece
Karatzas & Partners
Hong Kong
Slaughter and May
India
Trilegal
Ireland
Ogier
Italy
BonelliErede
Japan
Mori Hamada & Matsumoto
Netherlands
De Brauw Blackstone Westbroek
Nigeria
Bloomfield LP
Philippines
Villaraza & Angangco
Poland
WKB Lawyers
Portugal
Uría Menéndez - Proença de Carvalho
Singapore
Rajah & Tann Singapore
South Korea
Kim & Chang
Spain
Uría Menéndez
Sweden
Mannheimer Swartling
Switzerland
Bär & Karrer
Thailand
Chandler MHM
Turkey
Paksoy
United Kingdom
Slaughter and May
United States
Cravath, Swaine & Moore
Vietnam
Le & Tran Law Corporation
Contributors
Australia
People + Culture Strategies
Austria
GERLACH
Belgium
Van Olmen & Wynant
Brazil
CGM
China
Jingtian & Gongcheng
Finland
Roschier
France
Bredin Prat
Germany
Hengeler Mueller
Greece
Karatzas & Partners
Hong Kong
Slaughter and May
India
Trilegal
Ireland
Ogier
Italy
BonelliErede
Japan
Mori Hamada & Matsumoto
Netherlands
De Brauw Blackstone Westbroek
Nigeria
Bloomfield LP
Philippines
Villaraza & Angangco
Poland
WKB Lawyers
Portugal
Uría Menéndez - Proença de Carvalho
Singapore
Rajah & Tann Singapore
South Korea
Kim & Chang
Spain
Uría Menéndez
Sweden
Mannheimer Swartling
Switzerland
Bär & Karrer
Thailand
Chandler MHM
Turkey
Paksoy
United Kingdom
Slaughter and May
United States
Cravath, Swaine & Moore
Vietnam
Le & Tran Law Corporation