Workplace Investigations

It is not uncommon for respondents to an investigation to take personal or carer’s leave (sick leave) claiming that they are suffering from stress or anxiety. If this occurs, employers need to act appropriately, but this does not necessarily involve stopping the investigation process.

Employers should:

• assess the medical evidence to ascertain the respondent’s condition and determine how long they are likely to be unwell;
• avoid exacerbating the condition;
• determine whether the employee is unfit to attend the investigation meeting;
• take into consideration the evidence of other witnesses;
• consider delaying the investigation for a short period; and
• consider conducting the interviews in other ways, for example, in writing.

While all efforts should be made to accommodate an employee who has taken personal or carer’s leave during an investigation, if the respondent does not participate in the investigation, the investigation report may be prepared based on the available evidence.

The involved employee's sick leave does not affect the internal investigation. Most investigative measures can be carried out without the employee's presence.

If this occurs, there is a risk that any measure resulting from the investigation (eg, a dismissal) can be (wrongly) interpreted as discrimination based on the illness of the employee. However, if the employer can prove that the measure is not related to the illness but solely related to the investigation (which is also not related to the illness), there may be no discrimination. The sickness of the employee may prevent the continuation of the investigation because, for example, it becomes impossible to hear from the employee. In this instance, the investigation can be suspended, postponed or extendeded until the employee returns. If it is a long-term absence, this could lead to a disproportionate amount of time to complete the investigation. Therefore, the employer should take any necessary steps to invite the ill employee to a hearing anyway (eg, through digital means). If the employee unreasonably refuses (several) of these invitations, it could be argued that the employee is wilfully boycotting the investigation and therefore forfeits his or her opportunity to be heard.

Sick leave suspends the employment agreement, and as a rule the employee should not be contacted during such a suspension. The investigation may continue without the participation of the investigated employee while that employee is absent, have its conclusion suspended while he or she is on leave, and resume once the employee returns to work.

During the investigation, the employer should fully respect the basic labor rights of the employee. According to the relevant provisions of Labor Contract Law of the PRC, if an employee is sick during the investigation, the employer should permit him/her to take sick leave provided that he/she provides the medical certificate issued by the medical institution and performs the medical leave application procedure as required by the employer. Therefore, the employer usually needs to request the employee to cooperate with the investigation after the sick leave, and cannot force the investigation by means of coercion or violence.

However, for the contents that can be investigated by the employer alone, such as the information publicized by the employee on social media and the employee's relevant information publicized on official website, since the investigation of such information is not affected by the employee's physical condition, the employer may adjust the investigation plan and conduct such part of the investigation first.

As a general rule, sick leave does not prevent an investigation from progressing. Depending on the nature of the sickness, the employee can attend hearings and take part in the procedure. If the sickness prevents the employee from participating, the employer can put the process on hold temporarily.

The investigation will likely be able to continue with the other employees and, as soon as the employee under investigation returns from sick leave, they will be able to be interviewed.

However, as disciplinary sanctions are time-barred after two months from the moment the misconduct was committed or from when the employer becomes aware of it, if the sick leave lasts for the whole of that period, the investigation must be conducted anyway. In this instance, the investigator can ask the employee to attend the interview despite being on sick leave or arrange for the interview to take place using other means (eg, conference call). As a last resort, a questionnaire can be sent to the employee, but the pros and cons must be assessed as this is a way of information gathering that carries a certain amount of risk, could be less reliable and is of less probative value.

Workplace investigations that do not require the presence or active cooperation of the employee may also start or continue during the employee's absence due to illness. If the employee's cooperation is required, for example for an interview, the employer can only instruct the employee to participate despite an existing illness if certain narrow conditions are met:

Regarding staff meetings at the company, the German Federal Labour Court has ruled that the employer can only instruct the employee to attend the staff meeting during illness if

• there is an urgent operational reason for doing so, which does not allow the instruction to be postponed until after the end of the incapacity to work; and
• the employee's presence at the company is urgently required and can be expected of him.

Similar rules are likely to apply to the employee's presence for workplace investigations.

Urgent operational reasons that cannot be postponed could exist, for example, if during the employee's absence due to illness, there is a risk that evidence will be lost (eg, where only the employee affected has access to certain files or data) or there is a risk of significant damage to the employer if workplace investigations are stopped until after the employee's return.

In principle, the health of an ordinary employee would not prevent the investigation procedure from taking place (eg, interviews with witnesses or the collection of evidence would not be postponed or suspended). However, if the employee under investigation is unwell and they can't participate in the procedure, the investigation may be suspended or postponed until the employee can take part. Bearing in mind the majority of company internal policies and regulations governing workplace investigations provide for a specific framework and timetable for the whole procedure to be completed, the long-term sickness of an employee under investigation may impede the completion of the procedure in the prescribed time. As a result, the person conducting the investigation may seek alternative measures to facilitate participation (eg, teleconferencing).

On a related note, if sickness occurs after the investigation is completed and the employer decides upon the imposition of disciplinary measures against the said employee and the initiation of a relevant procedure, the decision should be duly and timely communicated to the employee, irrespective of whether his or her presence in the workplace is not possible because of the illness.

If the employee under investigation goes off sick, the employer should ascertain the medical condition of the employee and when he or she is likely to return to fitness. If the employee is unlikely to return to work for a reasonable time, the employer should consider what adjustments can be made to the investigation process to continue with the investigation. If the employee’s input is necessary for the conclusion of the investigation, the employer may invite the employee to provide information by way of a written questionnaire or to attend a virtual meeting. However, the employee may not necessarily agree to these proposals, especially if he or she is unwell. In such circumstances, the employer may not be able to conclude the investigation in the absence of the employee.

The approach to be adopted would be fact-specific but the investigation itself can normally continue, even in the absence of the accused employee. Where it is critical to speak with the employee as part of the investigative process, delays on account of the employee's sickness may need to be accommodated. At the same time, the employer would normally be justified in seeking necessary evidence of the authenticity of the employee's illness and anticipated duration of absence. An accused individual's participation would be more crucial in a disciplinary inquiry to formally respond to the written charges or present their side before the inquiry officer, and absences due to genuine health concerns may need to be reasonably accommodated. Significantly long periods of absence for health reasons may itself be valid grounds to terminate employment under Indian law, subject to the terms and conditions of employment.

If an employee goes off sick during the investigation, it is reasonable to adjourn the investigation until the employee is fit to return to work. Difficulties arise if it is a prolonged absence. The absence may necessitate a referral to an occupational health expert and it may be necessary to seek medical advice as to whether the employee can continue to participate in the investigation. It may be that reasonable accommodations should be considered to ensure that the employee can continue to participate. Such situations may impinge on the investigator's ability to conclude the investigation. In that instance, it would be prudent for the investigator to document all attempts to involve the employee in the investigation and to assess whether it can be concluded without the further involvement of the employee.

Although there are no specific rules stating an investigation must be suspended if the employee under investigation goes off sick, practically speaking, this may slow down the process. Indeed, the employer would not be in the position to “force” the employee, while he or she is absent from work, to physically attend meetings, although they may ask for the employee’s availability to attend remote interviews (eg, via videoconference).

There is case law regarding an employee’s sickness during a disciplinary procedure (i.e. the procedure described above in point 3): according to certain rulings, if an employee, as per his or her rights, asks to submit an oral defence, but then falls sick, this does not prevent the employer from completing the procedure (and taking disciplinary action), unless the employee proves that his or her sickness prevents him or her from physically attending the meeting (being said that, above all if the procedure ends with a dismissal, a case-by-case analysis on how to manage such situations is highly recommended).

The company will seek a physician's diagnosis and opinion and determine whether to proceed with the investigation. If an employee’s mental health suffers because of the investigation, the company may be charged with a violation of its duty of care.

If the employee under investigation goes off sick during the investigation, they will generally be treated as a regular employee on sick leave, meaning they are entitled to continued salary payment and that both employer and employee have a reintegration obligation. This entails regular consults with the company doctor to determine how recovery progresses and when the employee can return to work. If the employer suspects that the employee is merely calling in sick to delay the investigation and such suspicion is not confirmed by the company doctor, the employer can ask the Employees Insurance Agency (UWV) to give a second opinion. When it is determined that the employee is in fact fit for work, the employer can oblige the employee to return to work and cooperate with the investigation. If the employee fails to comply, the employer can – after due warning – suspend the employee's salary payment.

The investigation would be suspended until the employee returns from sick leave. The investigation will immediately restart upon the return of the employee.

Since neither consent nor the presence of the employee is material to the conduct of the investigation, his or her absence would not, in practice, imperil the conduct of the investigation.

As previously discussed, because the employer exercises a wide latitude of discretion in conducting workplace investigations, the employer may choose to proceed with the investigation despite the absence of the employee being investigated. Since the proceeding is only in the investigation phase, the statutory right of the employee to be heard is not violated, even if the investigation takes place without his or her participation.

This may prolong the investigation, as the employee may be unable to participate for a time (if the employee is not able to work, in many cases he or she will not be able to participate in proceedings that requires some level of engagement and psychophysical ability). Also, an employee is protected against termination of an employment contract with notice during sick leave. During such a period, the employer may only terminate his or her employment contract without notice (with immediate effect).

The employer will be able to proceed with the investigation or disciplinary procedure regardless, although if it is necessary to hear the employee and they are unable to attend the interview, either the employer waits for their return or it could also send a written questionnaire for the employee to complete.

If the employee under investigation has already responded to the allegations made against him or her and his or her participation is no longer required at this stage in the investigation, the employer may proceed with the investigation even while the employee is off sick.   

However, if the employee under investigation has not responded to the allegations made against him or her and his or her participation is still required in the investigation, the company may exercise its discretion to pause the investigation until the employee can assist in the investigations.  To prevent an employee from using a medical condition as an excuse to delay or avoid the investigation, the company may require the employee to provide specific medical documentation to address the issue of the employee’s ability to participate in the investigation and to adjust the investigation process accordingly. For instance, instead of scheduling an in-person interview, the company may send a list of written questions for the employee to answer, and may also extend timelines for responding, etc.   

If the employee is unable to return to work for the foreseeable future, the employer may consider reaching a provisional outcome based on the available evidence, which would be subject to change when the employee under investigation can return to work.

The company should review whether the employee under investigation is requesting sick leave under appropriate procedures and for a legitimate reason and may consider ways to persuade the employee to cooperate with the investigation. If the employee applies for sick leave following company policy, the company would need to grant such sick leave and suspend the investigation during the sick leave.

Like in the case of grievances (see question 19), the deciding factor will be assessing whether sick leave is related to the investigation or not.

If there is no link between the investigation and the sick leave, then the leave is not relevant from the point of view of the investigation. However, if the sick leave was a result of the investigation (for instance, an employee taking sick leave due to anxiety related to the investigation), then the convenience of pursuing the investigation or of temporarily suspending it should be evaluated to avoid any liability for the company.

The employer is responsible for the employee’s work environment during the investigation. The employer must assess the situation and the impact on the employee’s health and may, depending on the situation, have to postpone certain investigative measures, such as interviewing the employee in question. The investigation may even have to be completed without the employee participating.

The time spent on the internal investigation by the employee should be counted as working time[1]. The general statutory and internal company principles on sick leave apply. Sick leave for which the respective employee is not responsible must generally be compensated (article 324a paragraph 1 and article 324b, Swiss Code of Obligations). During certain periods of sick leave (blocking period), the employer may not ordinarily terminate the employment contract; however, immediate termination for cause remains possible.

The duration of the blocking period depends on the employee's seniority, amounting to 30 days in the employee's first year of service, 90 days in the employee's second to ninth year of service and 180 days thereafter (article 336c paragraph 1 (lit. c), Swiss Code of Obligations).

If the absence is anticipated to be brief, the employer may wait until the employee's return before concluding the investigation. If the employee's absence is expected to be prolonged, the investigator may alter the time of meetings or request that the employee submits a witness statement. The key point would be that all necessary measures should be taken to give the employee a chance to participate.

The employee’s participation in the investigation is vital for a fair assessment and to ensure that the employee has been allowed to defend himself or herself against the allegations. As such, every reasonable effort must be made by the employer to adjust the investigation process so that the employee can take part in the investigation. For example, if the employee goes off sick and thus cannot attend the investigation interviews or disciplinary hearings, the investigation should be carried out as much as possible without resorting to the employee in question, by initially exhausting the other available options (such as conducting interviews or disciplinary hearings with other available witnesses). However, if the employee’s absence takes longer than is reasonably expected or the matter at hand must be dealt with urgently, the employer may consider concluding the investigation and determining the next steps based on the information at hand. In such a case, it is recommended to explain in the investigation report the reasons why the employee could not take part in the investigation process (ie, why an interview or disciplinary hearing, etc, could not have been arranged with the employee) along with supporting documentation evidencing the employer’s efforts to involve the employee in the investigation process and the employee’s excuse for not participating interviews or disciplinary hearings.

This is a relatively common occurrence. It would usually be appropriate to suspend the investigation temporarily, to determine how serious the health issue is and when the employee may be fit to return. The investigator should consider what adjustments or allowances can be made to progress the investigation despite the employee’s absence. If their evidence has not yet been gathered, the employee may be invited to provide a written statement instead of attending an investigation meeting, or the meeting could be held remotely or at a neutral location. If none of this is possible, it may be difficult to fully conclude the investigation.  

If an employee who is the subject of a workplace investigation becomes sick during the investigation, the investigator should complete as much of the process as possible in the employee’s absence, for example by conducting interviews with the complainant and other witnesses and collecting and reviewing relevant documentation. Where the employee’s absence is expected to be short-term, the employer can postpone completing the investigation until the employee returns to work and can be interviewed. Where a lengthy absence is expected, the investigator should take steps to ensure that the employee nevertheless has a fair chance to participate in the process, for example by providing the employee with flexibility in scheduling his or her interview or by offering other accommodations such as conducting the interview by video conference instead of requiring an in-person interview, or alternatively meeting in a neutral place instead of the office. It is important to maintain records of the steps taken to accommodate the employee to show that the process was reasonable and fair. 

Workplace investigations do not require the presence or active cooperation of the employee under investigation. Thus, the investigation may start or continue in the employee’s absence due to illness.

If the employee’s presence is necessary for the conclusion of the investigation, the employer may invite the employee to provide information either by submitting his or her answers to a written questionnaire or attending a virtual meeting. However, the employee may not accede to the employer’s requests and proposals, especially if the employee has an illness. As a result, the employer may not be able to conclude the investigation due to the absence of the involved employee.

Employers must take steps to deal with the findings of the investigation and implement any recommendations promptly. This may involve commencing disciplinary action.

The complainant and respondent need to be informed of the outcome of the investigation. All witnesses who participated in the investigation should also be thanked for their contribution and advised that the investigation has been completed. All participants in an investigation should be reminded of their ongoing obligations concerning confidentiality and victimisation.

If an employer decides that it may be appropriate to terminate a respondent’s employment, the employee must be provided with the opportunity to respond and to “show cause” as to why their employment should not be terminated.

The investigation report along with any other materials produced during the investigation should be kept in a separate confidential file.

Employers should also consider whether action should be taken at an organisational level to prevent future misconduct. In particular, employers are required to take a proactive approach to addressing systemic workplace cultural issues in relation to sex discrimination, sexual harassment and victimisation.

The employer may impose consequences under labour law. Consequences may include verbal or written warnings, transfers or other disciplinary measures. The employer may also implement training or educational measures if the issue is due to the employee's lack of knowledge. In serious cases, besides dismissal without notice – for example. if the employer seeks damages –legal action (civil or criminal) may be taken against the employee.

If the investigation leads to the establishment of grave errors by the employee, this can lead to sanctions. The employer must follow the procedure laid down in the internal work rules of the company and can only impose sanctions that are included in the internal work rules. In general, these are: a verbal warning; a written warning; a suspension (remunerated or not); a fine (capped to one-fifth of daily remuneration); and dismissal. If there are very serious errors leading to an immediate inability to continue the employment relationship with the employee, the employer can dismiss the employee with urgent cause without any notice period or indemnity in lieu of notice (following the specific procedure for these types of dismissals). In less serious cases, the employer could still dismiss the employee with a notice period or indemnity in lieu of notice. In principle, the employer has a right to dismiss the employee, even if this sanction is not included in the internal work rules.

As said previously, disciplinary sanctions (included in the internal work rules) must be communicated to the sanctioned employee the day after the employer or his delegate has established fault. The sanction must be registered in a sanction register, with the name of the employee, the date, the reason and the nature of the sanction. If there is a fine, the amount of the fine should be mentioned. The proceeds of the fines must be used for the benefit of employees. Where a works council exists, the use of the proceeds of the fines must be determined after consultation with it.

If investigators conclude that a breach has occurred, the company may determine the appropriate response, which may include verbal or written warnings; the suspension of employment without payment (for up to 29 days) or termination of employment without or with cause; a review of policies or operational protocols; and new training modules or the updating of training modules.

If the investigators conclude that a breach has not occurred but determine that the report was made in good faith, the case must be set aside. If the investigators determine that the report was made in bad faith, the employer must determine how to respond to the bad-faith reporter.

The employer may take disciplinary actions against the employee based on the investigation result and pursue their civil, administrative and even criminal liabilities. To be specific: 1) the employer may criticize and educate the employee, or take disciplinary actions such as warning, demotion and removal according to the internal rules and regulations of the employer. If the misconduct of the employee constitutes one of the circumstances stipulated in Article 39 of the Employment Contract Law of the PRC, the employer is entitled to take the most severe disciplinary action, namely termination of employment contract; 2) if the employee has caused economic loss to the employer, the employer may lawfully initiate a civil litigation recourse procedure; 3) if the employee violates the Law on Administrative Penalties for Public Security Administration of the PRC, the employer may deliver the case to the administrative department for corresponding administrative penalties; 4) if the employee is suspected of a crime, the employer should deliver the case to the public security authority and pursue his/her corresponding criminal liabilities according to the law.

The employer decides whether misconduct has taken place or not. Depending on the case, the employer may recommend a workplace conciliation in which the parties try to find a solution that can be accepted by both sides. The employer may choose to give an oral reprimand or a written warning. If the legal conditions are met, the employer may also terminate the employment agreement.

The employer can decide to sanction the person who was under investigation or to close the case. The employer may also need to protect any victims, witnesses and whistleblowers. If, during the investigation, it is discovered that a supplier or other commercial partner is implicated, the relevant contract may be terminated. The employer can take legal action , file a complaint (if the company is a direct victim of a criminal offence) or report the offence to the public prosecutor’s office. The employer must archive the file or ensure its lawful preservation after a certain period.

Depending on the results of the investigation, different steps may have to be taken by the employer. Specifically, the following should be considered:

• in certain cases, there may be an obligation (or at least good reason) to share the results of the workplace investigation with the authorities (see question 25);
• filing of a criminal complaint against the employee;
• disciplinary measures against the employee such as a warning, ordinary termination or termination for cause;
• assessing and asserting claims for damages against the employee;
• offering compliance training to the relevant employees or introducing additional measures to prevent further violations;
• if there is a risk that the company itself is exposed to investigative proceedings at some point and may have to defend itself, investigation materials should be stored at the company's external attorney's office; and
• depending on the individual circumstances of the case and to mitigate potential reputational damage, proactively informing the public (eg, by issuing a press release) may be beneficial.

For workplace violence and harassment investigations, depending on the outcome of the internal investigation, the employer may adopt certain measures including, for example, recommendations to the employee under investigation, changes to the employee’s working hours and transfer to another department.

If the employer decides to terminate the employment relationship, without having previously followed existing corporate policies regarding reporting procedures or without having provided the alleged perpetrator with the right to be heard, the dismissal could be deemed invalid. In any case, the measures adopted should be appropriate and proportional to the act committed.

If the outcome of the investigation reveals that misconduct has been committed by the employee, the employer may consider whether it should allow the employee to defend him or herself against such findings. If the employment contract or relevant internal policies specify a right to be heard on the part of the employee through a disciplinary hearing before any actions can be taken against him or her, such procedures should be followed.

Assuming the employer maintains its findings that the employee has committed misconduct after the conclusion of the disciplinary hearing (if any), the employer may consider taking one of the following disciplinary actions against the employee depending on the nature and severity of the misconduct:

• Verbal or written warning – this is a common form of disciplinary action. The employer may consider including the nature of the misconduct and the potential consequences of repeating such misconduct (for example, termination of employment) in the warning to be given to the employee;
• Termination with notice – the EO allows employers and employees to terminate the employment with notice. It is not necessary to give reasons for the termination unless the employee concerned has been employed for at least 24 months, in which case the employer shall demonstrate a valid reason for the termination as defined under the EO;
• Suspension – the employer may suspend the employee without pay for up to 14 days in circumstances where the misconduct concerned justifies a summary dismissal, or where a decision on summary dismissal is pending. The employee may also be suspended where there is a criminal proceeding against him or her relevant to the investigation, until the conclusion of the criminal proceeding (as discussed in question 3);[1] and
• Summary dismissal – the employer may terminate an employment contract without notice if the employee is found to have:
  • wilfully disobeyed a lawful and reasonable order;
  • failed to duly and faithfully discharge his duties;
  • committed fraud or acted dishonesty; or
  • been habitually neglectful in his duties.[2]

In misconduct cases, the next steps for an employer would depend on the outcome of the investigation. If the investigation reveals that the employee has violated the terms of employment and the employer wishes to take disciplinary action (which may include dismissal, depending on the gravity of the misconduct), it would normally be necessary to conduct a disciplinary inquiry as per the principles of natural justice before any actual punishment is meted out. Such a disciplinary inquiry would normally require the issuance of a charge sheet, the appointment of an independent inquiry officer (who should not have been involved in the investigation or otherwise in a position of bias vis-a-vis the parties involved),  and conducting disciplinary hearings, etc.

With SH complaints, once the investigation is concluded by the IC, the employer will be provided with a copy of the final report by the IC along with recommendations (ie, the disciplinary measures to be taken against the accused) for the employer to implement. The employer would then be required to act upon the recommendations shared by the IC within 60 days.

The investigator will usually set out recommendations within their report. It will then be up to the employer to act on those recommendations and to accept or reject the findings (if it were a fact-finding investigation). If, for example, a recommendation is made that the matter should proceed to a disciplinary hearing, the employer should then arrange such a hearing and nominate an impartial member of management to carry out the disciplinary hearing. In some instances, recommendations are made by investigators to provide training or update policies and such recommendations should be acted upon without delay. It may also be appropriate to notify a specific regulator of the outcome of the investigation.

Upon completion of the investigation, the employer – if misconduct by the employee emerges – may bring disciplinary action against him or her (which may be either dismissal or a “conservative” measure such as an oral or written warning, a fine, or a suspension, within the limits provided under the law and possibly the applicable NCBA).

If a criminal offence by the employee emerges, the employer may also decide to report the crime to the public authorities (see question 25).

In an investigation into an employee's misconduct, based on the results of the investigation, disciplinary action will be considered if there are grounds for disciplinary action, and dismissal will also be considered. Personnel actions (eg, dismissal, reassignment) may also be taken.

A distinction can be made between a non-public reprimand and a public reprimand. A non-public reprimand is a warning from the employer to the employee that certain behaviour by the employee may not be repeated. This is a relatively light measure. The employer can apply this measure to behaviour for which a verbal warning is insufficient or has already been given (more than once). The employer should confirm the reprimand to the employee in writing, so that it forms part of the employee's personnel file. It is important to have an acknowledgement so there is no dispute as to whether the reprimand has reached the employee. Often, the letter will also mention the consequences if the employee continues to behave in this way, so that the employee is aware of them. The employer then has reasonable grounds to apply a more severe disciplinary measure, such as suspension or dismissal, should the behaviour be repeated.

For a public reprimand, the warning is also made known to third parties. This is, therefore, a more severe measure than a non-public reprimand, as the honour and reputation of the employee are affected. A public reprimand must, therefore, be proportionate to the seriousness of the behaviour and will only be possible in the event of a serious offence, for which a non-public warning will not suffice. A public reprimand is also more likely if it is necessary to prevent other employees from engaging in the same behaviour (deterrent effect). Given the impact on the employee, it is important that the employer carefully investigates the facts and allows the employee to tell their side of the story (hearing both sides of the argument). A public reprimand is rarely given.

If the outcome of the investigation is that the employee is culpable, the employer can request that the court dissolves the employment agreement for that reason. The employer will have to show that continuation of the employment agreement is no longer possible. If the court rules that the employee is culpable, the employment agreement will be dissolved, observing the relevant notice period and paying the statutory transition payment. Only if the court rules that the employee has shown serious culpable behaviour, will the notice period not be taken into account and the transition payment will not be due.

If the employee has come into contact with the judicial authorities or is suspected of a criminal offence, but has not been convicted or detained (yet), the employer – when requesting the dissolution of the employment contract – will have to make a plausible case that, based on this suspicion alone, it can no longer be reasonably expected that the employment contract is upheld. This may be the case in a situation where the offence the employee is suspected of has repercussions on the employer, colleagues or customers and relations of the employer. In this situation, the court will assess whether a less drastic measure than dismissal, such as suspension, is sufficient to the interests of the employer.

If there is still no conviction but the employee is unable to perform his or duties due to being detained, the court reviews a request for dissolution in the same way as above. In this case, if the employee's payment of wages is discontinued, justice may already have been done to the employer's interests.

The final stage involves the conviction and detention of the employee. Although the dissolution of the employment contract under section 7:669 (3) under h DCC – which includes conviction and detention – is the most obvious option, it is still necessary to assess whether termination of the employment contract is reasonable because of the employee's conviction and detention. Although the seriousness of the offence, the duration of the detention and how this reflects on the employer are important factors, the court also takes the age, duration of the employment contract and the position of the employee on the labour market into account.

The most far-reaching dismissal method that can be considered is instant dismissal for an urgent reason (section 7:678 paragraph 1 in conjunction with section 7:677 paragraph 1 DCC). According to the case law of the Dutch Supreme Court, the question of whether there are compelling reasons must be answered based on all the circumstances of the case – to be considered together – including the nature and seriousness of what the employer considers to be compelling reasons, the nature and duration of the employment, how the employee performed their duties and the personal circumstances of the employee, such as age and the consequences for the employee of an instant dismissal.

Mere suspicion of a criminal offence will not easily qualify as an urgent reason, as follows from jurisprudence. At the same time, an employer can, instead of criminal suspicion as grounds for dismissal, also base its claim on the behaviour that underlies it. If the behaviour of the employee is already factually established, for example, because the employee has disclosed it to their employer or the employer has established it, the employer does not have to wait for the criminal proceedings before dismissing the employee.

Upon the completion and receipt of the findings of the investigation, the employer may affirm the employee’s innocence or take disciplinary action against them.

After the investigation has been concluded, the next steps of the employer will depend on the result of the investigation. If there are reasonable grounds to hold the employee for an administrative hearing, the employer may issue a Notice To Explain containing the charges against him or her and allowing the employee to explain his or her side. Otherwise, the employer may terminate the investigation immediately.

It depends on the outcome of the investigation: imposing penalties; reporting to a regulator; notifying a suspected offence or civil claim; termination of an employment contract with or without notice; and changes to the work organisation. Following the investigation, the employer must make some legal, business or HR corrective actions.

Once the preliminary investigation ends, the employer must decide whether or not, in its view, there are grounds to bring an accusation against the employee and enforce disciplinary action or if it should be dismissed due to a lack of evidence.

When the employer decides to enforce disciplinary action, the following sanctions may be applied:

• verbal warning;
• written warning;
• financial penalty;
• loss of holiday;
• suspension with loss of pay and length of service;
• dismissal with cause and without compensation.

The first five penalties are usually called conservatory sanctions, enabling the continuity of the employment relationship, as opposed to dismissal, which is deemed a measure of last resort.

The employer should take any follow-up steps required and keep track of whether any appeal against the outcome of the investigation is lodged. If any appeal is lodged, the employer should handle this appeal following its internal procedure. To the extent necessary, any disciplinary measures against the respondent employee should be stayed pending the outcome of the appeal.

After completing an investigation, the company may consider the following measures, among others:

1. taking disciplinary action against the relevant employees;
2. taking legal action (eg, criminal action, civil action) against the relevant employees; and
3. taking appropriate remedial measures (eg, strengthening existing policies and establishing new policies, and conducting training).

The company may also consider making a voluntary report to the relevant authorities as discussed in question 25.

After the conclusion of the enquiry, a company may choose to:

• close the investigation without taking any additional action; or
• adopt disciplinary measures against the employee.

These could range from a verbal or written warning to the suspension of work and pay for a set period. Disciplinary dismissals are also possible, but they are reserved for very serious offences.

Note that any disciplinary measure will have to follow the procedures that might be established in the applicable collective bargaining agreement, such as informing employee representatives or following a grievance procedure before adopting the measure.

An investigation may result in employment law measures (eg, support, training, relocation, warning, termination or dismissal). An investigation may also be inconclusive and not result in any action.

If the investigation uncovers misconduct, the question arises as to what steps should be taken. Of course, the severity of the misconduct and the damage caused play a significant role. Furthermore, it must be noted that the cooperation of the employee concerned may be of decisive importance for the outcome of the investigation. The possibilities are numerous, ranging, for example, from preventive measures to criminal complaints.[1]

If individual disciplinary actions are necessary, these may range from warnings to ordinary or immediate termination of employment.

Upon completion of the investigation, the employer can decide to take proper disciplinary action against the employee if it is found that the employee committed an offence or violated the work rules. An employer may also file a report with the police if the findings of the investigation amount to a criminal offence.

The employer may take various legal remedies against the employee whose infringement is discovered as a result of the internal investigation. Depending on the outcome of the investigation, the employer:

• may provide the employee with a written warning requesting him or her not to repeat the same conduct;
• terminate the employment relationship based on either just cause, without paying any compensation immediately, or valid reason by observing statutory notice periods or making payment in lieu of notice and paying severance compensation if applicable; or
• not take any action if the investigation concludes that no fault is attributable to the employee.

The investigator may recommend further action, but should not decide whether allegations are true, or suggest a possible sanction or prejudge what the outcome of any subsequent disciplinary process would be.

The employer will need to consider whether it is necessary to commence disciplinary proceedings. For regulated businesses, there may be an obligation to inform their regulator of the investigation outcome. In some circumstances, the employer may feel the need to make an internal or external announcement about the outcome, and any action it intends to take to implement any recommendations made by the investigator. There may also need to be certain updates to policies or procedures as a result of the investigation.

Where the misconduct alleged is substantiated in whole or in part by an internal investigation, the human resources function, potentially in consultation with in-house or outside counsel, should agree on disciplinary or remedial action to be implemented.

After the completion of the investigation, the employer may:

• take the appropriate labour disciplinary action against the employee;
• proceed with legal action against the employee (eg, reporting the criminal violations of the employee to the proper authority or filing a civil lawsuit against the employee before the court); or
• adopting preventive or remedial measures on how to avoid these violations and to mitigate the damage to the company (eg, reviewing internal policies and conducting employee training).

It is important for employers to conduct procedurally fair investigations that result in a fair outcome. Failure to do so may expose the employer to various claims by an employee. The most common type of claim following an investigation is an unfair dismissal claim. If a respondent’s employment is terminated because of an investigation, they may be eligible to bring an unfair dismissal claim in the FWC alleging their dismissal was harsh, unjust or unreasonable.

An employee may also bring a bullying, discrimination or general protections claim. These claims may be made even where the investigation does not result in the employee’s dismissal.

If an employer has departed from the procedures set out in their policies, or they have not followed the terms of an employee’s employment contract or another applicable industrial instrument then an employee may bring a claim for breach of contract.

Australia has also recently introduced the “Respect@Work” legislation which places a positive obligation on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. Accordingly, an employer who is not perceived to have taken a proactive and fair approach to these workplace issues faces significant legal exposure.

Failure to conduct an investigation properly (or a failure to conduct an investigation in circumstances where it is needed) can also cause significant reputational and financial risk.

This relates to the severity of the error. Data protection violations can lead to fines by the data protection authority or claims for damages. If consequences under labour law, such as dismissal, have taken place due to erroneous investigations or incorrect results, the employee concerned can assert claims under labour law or seek damages.

Furthermore, there may be consequences under criminal law. This is particularly the case if documents have been falsified in the course of the investigation. It is, therefore, crucial that employers exercise diligence and due process in internal investigations. Investigations must be conducted transparently and lawfully.

In general, abusive investigations could lead to a legal claim regarding the abuse of rights. During an investigation, an employer should be guided by principles of due diligence and not take disproportionate action. If the investigation causes unnecessary damage, involved employees could file for compensation (eg, before the labour court). Next, the employer is also responsible for following the mandatory procedure for official complaints regarding sexual harassment, bullying and violence at work and investigations of whistleblower reports. In the first case, an employer who does not follow the procedure or obstructs the procedure can be liable for penal or administrative fines (maximum 8,000 euro) or, if the employer has not taken necessary measures to mitigate the risks for the employee and the employee suffers damage to their health, they may be liable for a fine of a maximum of 48,000 euro and imprisonment for between six months and three years. In the second case (whistleblower procedure), if an employer did not follow or has obstructed the procedure, they can be fined up to 5% of the annual revenue of the preceding year.

If the complaints involve allegations of sexual harassment, violence or bullying at work, the employer might risk an investigation of the inspection on supervision and well-being at work. If the prevention advisor finds out, before giving his advice, that the employer did not take any suitable protective measures after they were recommended, the prevention advisor is obliged to call an inspection on supervision and well-being at work.

The employer’s legal exposure resulting from errors during the investigation depends on the error and the victim or victims affected. It may range from paying damages to a witness who was harassed because the company did not prevent retaliation from occurring; to the reversal of a termination for cause if a court determines that the evidence collected during the investigation did not meet the legal threshold to uphold it; to indemnification for a violation of privacy; or criminal prosecution because of unauthorised access to private communications.

It is inevitable that the investigation involves the employee's personal information, and once the investigation is mishandled, the employer may face the following legal risks:

Civil liability: Both the Civil Code of the PRC and the Personal Information Protection Law of the PRC, clearly provide the civil liability for infringement of privacy and illegal processing of personal information. Therefore, the investigated employee or relevant organizations such as the people's procuratorate have the right to claim or file a public interest lawsuit on the employer's improper collection of evidence, requiring the employer to bear the liability for infringement. In addition, the evidence obtained by an employer through infringing the employee's privacy and personal information rights and interests, in violation of the law, cannot be used as the valid evidence for the employer's unilateral termination of the employment contract or requiring the employee to compensate for losses.

Administrative liability: Article 66 of the Personal Information Protection Law of the PRC provides that, where personal information is processed in violation of regulations, administrative penalties imposed by the department performing duties of personal information protection may be up to revoking the business license, and the person directly in charge and other directly liable persons may be fined up to one million yuan and prohibited from practicing within a time limit. Meanwhile, Article 67 of the Personal Information Protection Law of the PRC provides that relevant illegal acts shall be recorded in the employer's credit files and disclosed to the public.

Criminal liability: if an employer illegally sells or provides to others the personal information obtained during the internal investigation, and the circumstance is serious enough, the judicial authority has the right to hold the employer, the managers directly in charge and other directly liable persons criminally liable in accordance with the crime of "infringement of citizens' personal information" under Article 253A of the Criminal Law of the PRC.

It should be noted that a compliance investigation may also involve the employer's communication and investigation reporting with overseas authorities, or overseas institutions' direct access to information from the employer's domestic systems. If the employer conducts cross-border transmission of such personal information, it shall also meet one of the conditions set out in Article 38 of the Personal Information Protection Law of the PRC (i.e. passing the security assessment organized by the national cyberspace administration authority, obtaining certification from a professional institution concerning the protection of personal information or entering into a standard contract with an overseas recipient). Violations of the above provisions may result in civil, administrative and even criminal liability.

There are no regulations regarding the actual investigation process. Therefore, the employer cannot be accused of procedural errors as such. However, once the matter has been adequately investigated, the employer must decide whether or not misconduct has taken place. If the employer considers that misconduct has taken place, the employer must take adequate measures for remedying the situation. Failure to adequately conduct the investigation could result in criminal sanctions being imposed on the employer as an organisation or the employer’s representative, or damages.

Within the context of an investigation following a whistleblower alert, any violation of the confidentiality obligation is punishable by two years’ imprisonment and a €30,000 fine.

If the employer fails to comply with its obligation to protect its employees’ safety, the employer will be liable for damages resulting from any failings during the investigation (eg, if sexual harassment is reported and no action is taken by the employer)

Different consequences may result from mistakes made by the employer (or its advisors) in the course of the workplace investigation. For example, if the employer has violated the data protection provisions of the DSGVO or BDSG, this may result in fines. This may also result in claims for damages by the employee. The employee may also have a claim for damages if it turns out that the suspicion of misconduct on the part of the employee is not confirmed and the employer has arbitrarily conducted workplace investigations without sufficient cause.

The employee can contest the decisions of disciplinary councils before the courts and request their annulment. 

Moreover, in the framework of L.4990/2022, a monetary penalty and prison sentence (to be defined by an implementing Ministerial Decision) may be imposed on any person violating confidentiality obligations concerning the identity and personal data of employees or third parties included in the investigation procedure, while monetary penalties are also provided for legal entities[15].

Moreover, administrative fines may also be imposed if the employer does not comply with the legal requirements concerning the prevention of violence and harassment in the workplace.

Furthermore, the employee under investigation may initiate proceedings before the courts under tort law, by claiming compensation for moral damages suffered if the company did not comply with its confidentiality obligations after the incident (eg, due to the spread of rumours in the workplace). This may also be linked with criminal law proceedings against the persons responsible for dealing with the investigation (and not against the legal person, since under Greek law there is no criminal liability for legal persons).

On the other hand, the employer may also be exposed to liability vis-à-vis the complainant, witnesses or facilitators, for breach of confidentiality or other obligations prescribed in the respective legal provisions, or if there are retaliation measures.

If the employer failed to comply with a requirement that is expressly stipulated in the employment contract or employee handbook (such as a procedural requirement to hold a disciplinary hearing or to provide certain information to the employee), the employer could be liable for breaching an express term in the employment contract.

Even where the employment contract does not contain express provisions for the conduct of an internal investigation, the employer is under an implied obligation of trust and confidence under common law (as discussed in question 11), which requires it to conduct the investigation and reach its findings reasonably and rationally in accordance with the evidence available and in good faith.[1] If the employer reached a decision that no reasonable employer would have reached, the conduct of the investigation may be in breach of the employer’s implied obligation of trust and confidence.

If the error in the investigation has led to a termination of employment (whether by way of summary dismissal or termination by notice), the employee may be able to bring a statutory claim for wrongful dismissal, unlawful dismissal or dismissal without a valid reason (as applicable).[2] If such a claim is successful, in addition to ordering the employer to pay monetary compensation, the court or tribunal may also make a reinstatement order (an order that the employee shall be treated as if he had not been dismissed) or re-engagement order (an order that the employee shall be re-engaged in employment on terms comparable to his or her original terms of employment) for the affected employee.

The employer may also be liable for unlawful discrimination under Hong Kong law if the investigation has been conducted in a discriminatory manner or the outcome of the investigation reflects differential and less favourable treatment of the employee concerned based on grounds of sex, marital status, disability, family status or race.

The risk an employer may face would be quite subjective. For example, if an individual is suspended without pay, the individual may attempt to argue that the entire investigation should be set aside, as non-payment of salary affects an individual’s ability to properly represent themselves. Material errors in disciplinary proceedings or not adhering to the rules of natural justice may result in disciplinary action being set aside, and potentially also orders for reinstatement of the employee with back pay (if the individual is protected by local labour laws) if the dismissal is found to be unfair or disproportionate to the gravity of the misconduct.

In addition to the above risks, in SH matters, if the IC constitution is incorrect or there are allegations of bias against a committee member, the whole investigation may be set aside and the organisation ordered to conduct a fresh inquiry through a properly constituted committee.

A failure to follow fair procedures in the investigation can have significant consequences.

Although the exception rather than the rule, an employee could challenge the investigation through injunctive proceedings if there is a breach of fair procedures. Such action would be taken before the High Court. Injunction proceedings may be brought while the investigation is ongoing, or just before its conclusion to prevent publication of a report making specific findings against an employee. A successful injunction may curtail any subsequent attempt to investigate the matter as allegations of penalisation, prejudice and delay may arise.

Errors during the investigation can also give rise to a complaint of constructive dismissal, with allegations that flaws in the procedure have fundamentally breached the implied term of mutual trust and confidence.

A flawed investigation can also undermine any disciplinary process and sanction that is imposed as a result. This commonly occurs when an employee has been dismissed following a disciplinary process launched on foot of the investigation. While dismissal may be an appropriate sanction, the dismissal can still be found to be unfair if there is a failure to follow fair procedures. An employee may challenge their dismissal before the WRC and the employer should be alive to not only an unfair dismissal complaint, but allegations of discrimination and penalisation.

Overall, to carry out a successful workplace investigation, an employer should consider taking advice at the earliest opportunity to ensure that the investigation can withstand challenges.

It depends on the kind of error or breach. For example:

• a breach of privacy laws (eg, acquiring data from working instruments in lack of due requirements) would lead to the application of privacy law sanctions (including monetary fines); and
• breach of provisions regarding “remote” control of employees would lead to criminal sanctions and to the inadmissibility, for disciplinary purposes, of the data collected (and thus potentially to the unlawfulness of a dismissal based on such data).

Furthermore, if the employee has suffered damages as a result of the employer’s errors or breaches (and can specifically prove such damages and their amount), the employer may be held liable in court.

If the company deviates from appropriate social rules in its investigative methods and means, it will be liable for tortious behaviour. If disciplinary action or dismissal is taken based on erroneous investigation results, the validity of such action or dismissal will be denied, the employee will be able to claim for back wages, and, in some cases, claim for compensation.

The employee can request compensation for violation of the right to a fair hearing or reputational damage. If the employee is suspended during the investigation, , the employee can request the court to order the employer to allow them to resume their work and request rehabilitation.

In termination proceedings (or after the termination of the employment agreement by the employer), the employee can claim an equitable compensation from the employer if the employer has shown serious culpable behaviour. Such compensation, if granted, is usually based on loss of income by the employee due to the behaviour of the employer.

• Violation of Fundamental Rights of the Employee
• Breach of Contract of Employment or wrongful termination

An employer may be liable for illegal termination if a dismissal is made based on wrong information collected during the investigation. Thus, the data and information gathered during the investigation stage must be correct and accurate. Further, investigations should be conducted in a manner that is fair and reasonable to the employee under investigation. Otherwise, the employee may treat the investigation as harassment on the part of the employer, which may subject the employer to a potential lawsuit.

If any untrue allegations were made by an employer against an employee without checking them beforehand, there is a risk that such an employee would claim damages eg, for infringement of personal rights or even filing a private indictment for defamation or outrage.

Certainly, an employer must be aware that one must never behave in a way that, for example, in the employee's opinion, could constitute a form of blackmailing or deprivation of liberty. A problem may also arise when accessing the employee's correspondence, especially when access is made to documents or private correspondence. The Draft Law provides for several criminal offences related to, for example, preventing reporting, using retaliatory measures against a whistleblower or disclosing personal data of a whistleblower).

If the disciplinary procedure recommends an employee's dismissal

Should a company dismiss an employee that has breached legal requirements, the latter may take action against the company within 60 days of the date of termination of their employment agreement.

If this action results in a ruling of unfair dismissal, the employee will be entitled:

• to receive all the payments they should normally have earned (back pay, including salary, holidays, legal subsidies, etc), from the month preceding the commencement of the lawsuit and until the final ruling of the court, minus any amounts they may have received during the same period and they would otherwise not have received; and
• to be reinstated in their former position or at the employee’s choice, to receive an indemnity that the court will calculate as between 15 and 45 days of base salary (and service bonuses) for each full year of service or fraction thereof, with a minimum limit of three months’ compensation.

This graduation will depend on the amount of the base salary (the lower the base salary, the higher the indemnity) and the severity of the company’s conduct. Additionally, the employee is entitled to claim an indemnity for further damages.

There are, however, two exceptions to the above: the first relates to high-ranking employees (ie employees carrying out management duties); the second refers to micro-companies (ie, a company that registered an average number of employees in the preceding calendar year below 10). In these two cases, the employer may oppose the employee’s option for reinstatement, arguing that it would be gravely harmful to the company's activity. From a practical perspective, opposition to reinstatement is not commonly decided by the courts.

Finally, should the court rule that the grounds for dismissal were valid, but the investigation was found to have been irregular, the dismissal will be deemed valid, but the employee will still be entitled to an indemnity of 7.5 to 22.5 days of base salary (plus service bonuses, if any) per year of service.

If the disciplinary procedure does not recommend dismissal, but the application of a conservatory sanction

In this event, the employee can challenge the application of the sanction through the filing of a lawsuit against the company. Although the law is not entirely clear, there are court rulings stating that the employee has one year to bring a lawsuit, but others consider that the statute of limitation to challenge a conservatory disciplinary sanction is also one year from the termination of the employment agreement when a pecuniary penalty or suspension was applied to the employee.

Moreover, according to article 331(3) of the Portuguese Labour Code, the employer who applies an unjustified conservatory penalty should compensate the worker under the terms set out in paragraphs 5 and 6 of said article. The imposition of an abusive penalty is also considered a very serious administrative offence as per article 331(7). Please note that the Portuguese Labour Code considers a penalty to be unjustified if its imposition is motivated by the following:

• the employee lawfully complaining about their labour conditions;
• the employee lawfully disobeying unlawful orders from a superior;
• the employee being a member of any employee representative structure or having been a candidate for such a position; and
• the employee exercising or invoking their rights and guarantees.

Furthermore, any penalty imposed within six months of any instance listed above (or within one year if the invoked rights are related to equality and non-discrimination) is presumed to be abusive.

The employer may be exposed to legal action for a failure to properly conduct the investigation, including having such portions of the investigation set aside or held to be void by the courts, and be made to pay damages to the affected employee; or face investigation and administrative penalties by regulatory authorities such as the MOM.

In addition, after the Workplace Fairness Legislation comes into force, breach of its requirements may also expose the employer or culpable persons to potential statutory penalties. The Tripartite Committee on Workplace Fairness recommended, among other things, for the Workplace Fairness Legislation to provide for a range of penalties including corrective orders, work pass curtailment and financial penalties against employers or culpable persons, depending on the severity of the breach. It is thus expected that employers or culpable persons may be exposed to potential statutory penalties if the requirements of the Workplace Fairness Legislation are not complied with.

As mentioned in question 19, employees may potentially raise claims, such as that the company violated data privacy laws in reviewing employee data, committed defamation, coerced the employee to comply with the investigation, and that witnesses or the company committed defamation in violation of the Criminal Code or disciplined the employee without just cause.

Errors during an investigation are normally linked to the breach of the employees’ privacy or their personal data rights (see question 1). Breaching these rights might expose employers to:

• Fines from the Labour Inspectorate and the Spanish Data Protection Authority.
• A court awarding damages to the employee.
• Any disciplinary measures adopted by the company as a result of the investigation could be considered null and void.
• The evidenced obtained during the investigation being disregarded by a court.
• In some very serious cases, criminal liability might arise for the individuals who conducted the investigation and breached the employees’ rights.

Errors resulting in terminations can be unlawful and, if they lead to employees terminating their employment as a result of the employer’s missteps, could be seen as constructive dismissal. Constructive dismissal is generally equivalent to an unlawful dismissal. Unlawful terminations generally result in an obligation to pay financial and general damages to the affected employees.

Failure to fulfil the obligations under the Swedish Discrimination Act may lead to an obligation to pay financial and general damages.

If an employer does not fulfil its obligations according to work environment legislation, there is a risk that the Swedish Work Environment Authority will issue injunctions or prohibitions against the employer. If an employer omits to meet its work environment related obligations, and that in turn results in a work related accident, e.g. self-harm in connection with an internal investigation, it may also, in a worst case scenario, lead to criminal liability.

The Swedish Work Environment Authority is also responsible for monitoring compliance with the provisions of the Swedish Whistleblowing Act. The Swedish Work Environment Authority may, if necessary to ensure compliance with the Swedish Whistleblowing Act, order an operator to comply with the obligations and requirements of the Swedish Whistleblowing Act. Employers violating the Swedish Whistleblowing Act may also be liable to pay damages to the affected employees.

If personal data is processed in a way that violates the GDPR, the authorised supervisory authority may issue warnings or reprimands to the data controller, order the controller to comply with the GDPR, impose a ban on processing, or impose an administrative fine on the controller. Companies violating the GDPR may also be liable to pay damages to data subjects.

As there are no specific regulations for internal investigations, the usual legal framework within which the employer must act towards the employee derives from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights.

But, for example, unwarranted surveillance could conceivably result in criminal liability (article 179 et seq, Swiss Criminal Code) for violations of the employee's privacy. Furthermore, errors made by the employer could have an impact on any later criminal proceedings (eg, in the form of prohibitions on the use of evidence).[1]

Evidence obtained unlawfully may only be used in civil proceedings if there is an overriding interest in establishing the truth (article 152 paragraph 2, Swiss Civil Procedure Code). Consequently, in each case, a balance must be struck between the individual’s interest in not using the evidence and in establishing the truth.[2] The question of the admissibility of evidence based on an unlawful invasion of privacy is a sensitive one – admissibility in this case is likely to be accepted only with restraint.[3] Since the parties in civil proceedings do not have any means of coercion at their disposal, it is not necessary, in contrast to criminal proceedings, to examine whether the evidence could also have been obtained by legal means.[4]

Unlawful action by the employer may also have consequences on future criminal proceedings: The prohibitions on exploitation (article 140 et seq, Swiss Criminal Procedure Code) apply a priori only to evidence obtained directly from public authorities. Evidence obtained unlawfully by private persons (ie, the employer) may also be used if it could have been lawfully obtained by the authority and if the interest in establishing the truth outweighs the interest of the individual in not using the evidence.[5] Art. 140 paragraph 1 Swiss Criminal Procure Code remains reserved: Evidence obtained in violation of Art. 140 paragraph 1 Swiss Criminal Procure Code is subject to an absolute ban on the use of evidence (e.g. evidence obtained under the use of torture[6]).[7]

The Thai Supreme Court has ruled that the termination of an employee was unfair due to an investigation being conducted contrary to requirements in the company’s work rules. As such, employers may be liable for damages to employees if there are errors made during investigations, or where investigations are not conducted properly.

The Supreme Court has also ruled that in cases of unfair termination, the underlying cause of the termination should be the determining factor, rather than other issues, including investigative procedures.

The nature of legal exposure is very much dependent on the legal action the employer has taken after the investigation. The employer may be subject to a wrongful termination lawsuit to be filed by the employee, which may result in the payment of compensation to the employee of between eight and 12 months’ salary, if the court concludes that the termination is wrongful. This may also include monetary and moral damages claims. If no termination has taken place, the employee may terminate his or her employment with just cause if the employer has erred in its neutral fact-finding mission and this affects the employee. The employee may also file a criminal complaint to the extent that the investigation findings incriminate the employee in error.

A reasonable investigation is a key component of a fair disciplinary process. Errors in the investigation could therefore expose the employer to liability for unfair dismissal under ERA 1996.

Failure to follow the ACAS Code does not automatically make an employer liable in any proceedings taken against it. However, an employment tribunal will take the ACAS Code into account when deciding whether an employer has behaved fairly, and has the power to increase awards by up to 25% where it believes an employer has unreasonably failed to follow the ACAS Code's provisions.

There may be liability for breach of the employee’s contract of employment if the employer breaches aspects of the investigation policy that are contractual, any contractual provisions relating to suspension, or otherwise conducts the investigation in a manner that breaches the implied term of trust and confidence.

There may be liability under the EA 2010 if the investigation is conducted in a discriminatory manner, which could include not making reasonable adjustments to the process for disabled employees.

Where the investigation involves protected disclosures, there may be liability under the whistleblowing provisions of ERA 1996 if the whistleblower is subjected to detriment or dismissal on the grounds of their protected disclosures.

Improper evidence gathering or processing may be actionable under the DPA 2018, IPA 2016 or the IP Regs 2018.

Finally, there may be common law claims in some circumstances (for example where reports need to be made to regulators, which in turn may affect the relevant employee’s future employment prospects) for defamation, or, more unusually, for stress-related personal injury.

The subject of the investigation, the complainant, or a government agency investigating the same alleged misconduct could subject the employer to legal exposure. It is, therefore, helpful for a company to prepare a contemporaneous report of the investigation that summarises: the incident or issues investigated, including dates; the parties involved; key factual and credibility findings; employer policies or guidelines and their applicability to the investigation; specific conclusions; the party (or parties) responsible for making the final determination; issues that could not be resolved through the internal investigation; and employer actions taken.

The employer should also maintain a clear record of the steps taken to investigate the alleged misconduct and any findings, as well as all evidence gathered during the investigation, including documents collected and reviewed, any work done to identify systemic issues or patterns of behaviour, and notes from all interviews, which should be limited to the facts gathered, dated and should indicate the duration and location of the interview.

The employer may be exposed to legal action for its failure to conduct the investigation properly, such as a lawsuit for labour disputes or sanctions for its failure to protect personal data as required under personal data protection regulations. For instance, if there were errors during the investigation which led to erroneous results for the investigation and consequently, the employee was dismissed, the employee may file a claim for illegal dismissal against the employer.