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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24. What next steps are available to the employer?
24. What next steps are available to the employer?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
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.
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
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.
Belgium
Belgium
- at Van Olmen & Wynant
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.
Brazil
Brazil
- at CGM
- at CGM
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.
China
China
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
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.
Finland
Finland
- at Roschier
- at Roschier
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.
France
France
- at Bredin Prat
- at Bredin Prat
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.
Germany
Germany
- at Hengeler Mueller
- at Hengeler Mueller
- at Hengeler Mueller
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.
Greece
Greece
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
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.
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
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]
India
India
- at Trilegal
- at Trilegal
- at Trilegal
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.
Ireland
Ireland
- at Ogier
- at Ogier
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.
Italy
Italy
- at BonelliErede
- at BonelliErede
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).
Japan
Japan
- at Mori Hamada & Matsumoto
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.
Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
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.
Nigeria
Nigeria
- at Bloomfield LP
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.
Philippines
Philippines
- at Villaraza & Angangco
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.
Poland
Poland
- at WKB Lawyers
- at WKB Lawyers
- at WKB Lawyers
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.
Portugal
Portugal
- at Uría Menéndez - Proença de Carvalho
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.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
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.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
After completing an investigation, the company may consider the following measures, among others:
- taking disciplinary action against the relevant employees;
- taking legal action (eg, criminal action, civil action) against the relevant employees; and
- 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.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
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.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
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.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
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.
[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 180 et seq.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
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.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
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.
United Kingdom
United Kingdom
- at Slaughter and May
- at Slaughter and May
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.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
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.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
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).
26. How long should the outcome of the investigation remain on the employee’s record?
26. How long should the outcome of the investigation remain on the employee’s record?
Australia
Australia
- at People + Culture Strategies
- at People + Culture Strategies
- at People + Culture Strategies
There are legal requirements related to the time you must keep certain employee records in Australia, such as pay slips and time sheets. However, there are no laws concerning disciplinary records.
Employers can rely on previous misconduct to justify an employee’s termination of employment where it can be shown it is part of a course of conduct. Accordingly, if complaints have been substantiated, and disciplinary action has been taken, these records should be maintained. However, if a significant period has elapsed since the misconduct, an employer should carefully consider whether it is appropriate to rely on this past behaviour to justify future disciplinary action for similar conduct.
Austria
Austria
- at GERLACH
- at GERLACH Rechtsanwälte
Data protection law requires that personal data should not be kept longer than necessary for the purpose it was collected. Once the purpose of the internal investigation is fulfilled and the data is no longer needed, it should be deleted or anonymised. Regulations regarding this matter may also be subject to WCAs or internal policies. In any case, it is advisable to keep the results for as long as they may be needed in possible subsequent administrative or judicial proceedings.
Belgium
Belgium
- at Van Olmen & Wynant
According to the GDPR, personal data should only be stored for a proportionate amount of time. Usually, this means that it can be stored as long as it is relevant for the employment contract, and even afterwards, if there is a risk of legal proceedings (ie, regarding the dismissal of the employee).
Brazil
Brazil
- at CGM
- at CGM
The existence of the investigation should be kept on file for at least five years from the date of its conclusion. All information related to the investigation should be kept on file for the same period, but not on the employee’s record, to avoid the risk of accidental access by unauthorised individuals.
China
China
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
- at Jingtian & Gongcheng
The relevant laws and regulations in the PRC have not clarified the retention period of the investigation findings. According to Article 19 of the Personal Information Protection Law of the PRC, unless otherwise required by laws or administrative regulations, the retention period of personal information shall be the shortest period necessary to achieve the purpose of handling the information. Since the employee's personal information is very likely to be involved in the investigation findings, such report should be retained for the shortest period necessary to achieve the purpose of handling the information. In general, once the investigation is completed, the purpose of the internal investigation has been achieved or it is no longer necessary to achieve the purpose, and the employer may, in accordance with Article 22 of the Administrative Regulations of the PRC on Network Data Security (Draft for Comments), delete or anonymize the personal information within fifteen (15) working days. If it is technically difficult to delete the personal information, or it is difficult to do so within fifteen (15) working days due to business complexity or other reasons, the employer shall not conduct any processing other than storing the personal information and adopting necessary security measures, and shall give reasonable explanations to the employee.
Finland
Finland
- at Roschier
- at Roschier
Please see question 7. The outcome of the investigation involving personal data may be retained only for as long as is necessary considering the purposes of the processing. In general, the retention of investigation-related data may be necessary while the investigation is still ongoing and even then the requirements of data minimization and accuracy should be considered. The data concerning the outcome of an investigation should be registered to the employee's record merely to the extent necessary in light of the employment relationship or potential disciplinary measures. In this respect, the applicable retention time depends on labour law-related rights and limitations, considering eg, the applicable periods for filing a suit.
France
France
- at Bredin Prat
- at Bredin Prat
If the outcome of the internal investigation has led to the sanctioning of an employee, this sanction may no longer be invoked to support a new sanction after three years. Moreover, under the GDPR principles, the duration of retention must be proportional to the use of the data. Therefore, the data must be retained only for a period that is “strictly necessary and proportionate”. If the employer wants to keep information about the investigation in the longer term, it is possible to archive the employee’s record even though the employer will no longer be able to use it against the employee after three years.
Germany
Germany
- at Hengeler Mueller
- at Hengeler Mueller
- at Hengeler Mueller
If there is no special statutory storage period (which is the case for investigative reports and findings), personal data may only be stored for as long as is necessary for the purposes for which they are collected. As soon as the data is no longer required, it must be deleted. In connection with workplace investigations, the question arises as to how this obligation to delete personal data relates to the company's corporate interests. From the company's perspective, there may well be legitimate interests that speak in favour of retaining existing data for as long as possible. Under the data protection regulations of the DSGVO and the BDSG, data can be stored for as long as it is required for the assertion, exercise or defence of (civil) legal claims. This means that the data can, in any event, be saved at least as long as any measures related to the workplace investigation have not yet been completed and any legal disputes have not yet been concluded.
Greece
Greece
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
- at Karatzas & Partners
Under the General Data Protection Regulation, employees’ personal details and information must be kept in the business records for as long as is necessary for the purposes of the employment relationship. Otherwise, stored data must be deleted. However, under L.4990/2022[14], reports remain in the relevant record for a reasonable and necessary time, and in any case until the completion of investigations or proceedings before the courts that have been initiated as a consequence of a complaint against the employee under investigation, the complainant or any third parties.
[14] L.4990/2022 art.16 par.1
Hong Kong
Hong Kong
- at Slaughter and May
- at Slaughter and May
- at Slaughter and May
There is no legal requirement in Hong Kong on this. However, since the investigation records will likely contain personal data, employers should be mindful of the requirement under the PDPO that personal data should not be kept for longer than necessary.[1]
According to the Code of Practice on Human Resources Management published by the Privacy Commissioner for Personal Data, generally, employment data about an employee can be kept for the entire duration of his or her employment, plus a recommended period of no more than seven years after the employee leaves employment unless there is a subsisting reason that justifies a longer retention period. A longer retention period may be justified where there is ongoing litigation or a parallel investigation. Even where it is deemed necessary to retain the outcome of the investigation concerning a departed employee, the employer should ensure that other personal data on the employee’s record (that is unrelated to the purpose of retention) are erased after the expiry of the recommended retention period.
[1] DPP2 (in Sch. 1) and PDPO section 26.
India
India
- at Trilegal
- at Trilegal
- at Trilegal
There is no statutory guidance on this. It is common for employers to retain details of disciplinary proceedings on an employee's record for the entire duration of their employment.
It is also advisable to retain the details of any investigations or disciplinary proceedings for at least three years after an individual has been dismissed on account of such proceedings, as this is the general limitation period for raising claims of unfair dismissal. In labour matters, courts in India often allow delays in filing suit after the limitation period, meaning organisations sometimes make a practical call to retain details of investigations and disciplinary proceedings for longer.
Ireland
Ireland
- at Ogier
- at Ogier
Irrespective of the outcome of the investigation, the fact that an employee was subject to an investigation is not the key issue. The key concern is whether any further action was taken as a result of the investigation. If a disciplinary process ensued, then it is the outcome of that disciplinary record and any subsequent appeal that would or would not be noted on an employee's record. If a disciplinary sanction were imposed then the length of time the sanction remains on the employee's record would depend on what is specified in the disciplinary policy.
Italy
Italy
- at BonelliErede
- at BonelliErede
The employer would normally keep the outcomes of the investigation for the entire duration of the employment relationship with the involved employee.
After the termination of the employment relationship, it appears reasonable to conclude that the employer would be entitled to retain this information for the time necessary to exercise its defence rights in litigation (taking into account that 10 years is the statute of limitations for contractual liability). Further requirements or restrictions under general privacy laws (and particularly the GDPR) should also be checked.
According to Art. 14 WB Decree, internal and external whistleblowing reports (including related documents) must be kept for as long as necessary for report processing, but no more than five years from the date of transmission of the procedure's final outcome.
Japan
Japan
- at Mori Hamada & Matsumoto
Records related to responses to whistleblowing must be kept for an appropriate period, but there is no legal stipulation on the retention period. Each entity is required to set an appropriate period after considering the need for evaluation and inspection, and the handling of individual cases. There is no legally stipulated retention period for other investigation results.
Netherlands
Netherlands
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
- at De Brauw Blackstone Westbroek
The outcomes are usually kept in the records until termination of the employment agreement and only deleted when personal records are deleted.
Nigeria
Nigeria
- at Bloomfield LP
The law does not provide for the time the outcome of the investigation may remain on the employee’s record. However, this will depend on the employer’s record-retention policies, which must comply with applicable data protection laws.
Philippines
Philippines
- at Villaraza & Angangco
The outcome of the investigation should only remain on the employee’s record for as long as is necessary, but shall not be less than three years as this is the record-keeping requirement under the Philippine Labor Code. If circumstances deem that such a report ceases to have any purpose whatsoever, it should be struck out of the employee’s record.
Poland
Poland
- at WKB Lawyers
- at WKB Lawyers
- at WKB Lawyers
Neither Polish law nor the Draft Law specifically provide for a mandatory period during which the outcome of the investigation should be kept on the employee’s record.
At the same time, the Draft Law indicates that the register of whistleblowing reports, which should also contain information about follow-up actions undertaken as a result of the report, should be kept for 15 months starting from the end of the calendar year in which the follow-up actions have been completed, or the proceedings initiated by those actions have been terminated.
Also, while determining how long the outcome of an internal investigation should be kept, additional legal considerations can be taken into account, especially data privacy.
The GDPR does not specify precise storage time for personal data. The employer must assess what will be an appropriate time for storage of the data, taking into consideration the necessity of keeping personal data concerning the purpose of the processing in question. Employees' personal data should be kept for the period necessary for the performance of the employment relationship and may be kept for a period appropriate for the statute of limitations for claims and criminal deeds. A longer retention period may result from applicable laws. Following the Regulation of the Minister of Family, Labour and Social Policy on employee documentation, the employer may keep a copy of the notice of punishment and other documents related to the employee’s incurring of disciplinary responsibility in the employee record.
There are different retention periods for the data contained in employee files:
- 10 years if the employee was hired on or after 1 January 2019;
- if the employment relationship began between 1 January 1999 and 1 January 2019, the retention period is 50 years, but may be reduced to 10 years if the employer provides the Polish Social Insurance Institution with certain mandatory information; and
- for 50 years if the employee was hired before 1 January 1999. It does not matter whether the person is still working or not.
Portugal
Portugal
- at Uría Menéndez - Proença de Carvalho
There are no specific rules in the Portuguese Labour Code on this matter.
However, article 332 of the PLC states that the employer should keep an updated record of disciplinary sanctions, so the competent authorities can easily verify compliance with applicable provisions. Accordingly, it is advisable to maintain a record of disciplinary sanctions during the entire employment relationship.
Also, please note that some collective bargaining agreements state that the disciplinary register must be deleted from the employee’s record periodically.
Singapore
Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann Singapore
- at Rajah & Tann
This depends on the company’s internal disciplinary policy and the severity of the offence. For instance, a written warning issued against an employee for minor misconduct is usually kept in the respondent employee’s file for one year and if the employee does not commit any further breaches during this time, the written warning will be expunged. However, if there is a finding of serious misconduct, particularly if such a determination results in the dismissal of the employee, these records are generally kept in the employee’s file for the duration of time such records are statutorily required to be maintained.
South Korea
South Korea
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
- at Kim & Chang
There is no legal requirement on how long the records of the investigation (eg disciplinary action) should be maintained by the company. Many companies maintain a record of disciplinary action throughout the employment period.
Spain
Spain
- at Uría Menéndez
- at Uría Menéndez
The outcome of the investigation will contain personal data of the affected employee. For this reason, this information should only be kept for as long as a legal obligation or liability in connection with the information could arise for the company. Since the general statute of limitations for employment liability is one year, this is a good guideline.
In addition to the above, two specific rules apply:
- once the information becomes irrelevant for the purpose for which it was obtained and processed, the information should no longer be stored on the employee’s record or elsewhere; and
- the employees’ information (including those of the reporter and the affected employees) should only be stored in whistleblower systems during the time that is necessary to decide on whether the facts need to be investigated or not and, in any case, for a maximum period of three months.
Sweden
Sweden
- at Mannheimer Swartling
- at Mannheimer Swartling
- at Mannheimer Swartling
Under the GDPR personal data may not, according to the general principle on storage limitation, be retained for longer than is necessary for the purposes for which the personal data are processed. The GDPR does not stipulate a generally applicable storage limitation period. Such a regulation is, on the other hand, included in the Swedish Whistleblowing Act. If the Swedish Whistleblowing Act applies, the outcome of the investigation and all personal data should be retained for as long as necessary, but not for longer than two years after the investigation has been closed.
Switzerland
Switzerland
- at Bär & Karrer
- at Bär & Karrer
From an employment law point of view, there is no statute of limitations on the employee's violations. Based on the specific circumstances (eg, damage incurred, type of violation, basis of trust or the position of the employee), a decision must be made as to the extent to which the outcome should remain on the record.
From a data protection point of view, only data that is in the interest of the employee (eg, to issue a reference letter) may be retained during the employment relationship. In principle, stored data must be deleted after the termination of the employment relationship. Longer retention may be justified if rights are still to be safeguarded or obligations are to be fulfilled in the future (eg, data needed regarding foreseeable legal proceedings, data required to issue a reference letter or data in relation to a non-competition clause).[1]
[1] Wolfgang Portmann/Isabelle Wildhaber, Schweizerisches Arbeitsrecht, 4. Edition, Zurich/St. Gallen 2020, N 473.
Thailand
Thailand
- at Chandler MHM
- at Chandler MHM
There is no period required by law for keeping the outcome of the investigation on the employee’s record. However, if termination of employment is the outcome of the investigation, an employer should keep details of the investigation for at least 10 years, in line with the prescribed period for an employee to file an unfair dismissal claim against an employer. An employer may use the details of an investigation to defend such a claim. For other disciplinary action, the retention of investigation details on the employee’s record is at the employer’s discretion.
Turkey
Turkey
- at Paksoy
- at Paksoy
- at Paksoy
- at Paksoy
There is no provision in the legislation setting forth a specific duration for keeping the outcome of the investigation findings in personnel files. However, based on general principles, the outcome of the investigation can remain on the employee’s personnel files as long as the employer has a lawful interest in such processing without unnecessarily harming the privacy rights of the employee.
United Kingdom
United Kingdom
- at Slaughter and May
- at Slaughter and May
The investigation outcome may not need to be noted on the accused employee’s record at all. Usually only the outcome of any subsequent disciplinary or grievance process would be noted, rather than the prior investigation.
The employer should keep the investigation report for as long as it remains relevant. This would usually be no longer than six years, unless regulatory obligations dictate otherwise. The report along with all documentation and witness statements gathered during the investigation should be retained securely and confidentially but for no longer than is absolutely necessary under the requirements of the DPA 2018 and the employer's data protection policies and procedures. There may be additional retention requirements in a regulated context; the position for each particular business and employee should be checked.
United States
United States
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
- at Cravath, Swaine & Moore
There is no requirement for the results of a workplace investigation to remain on an employee’s record for any specific period. It is often helpful, however, for information relating to the outcome of such an investigation (regardless of whether the allegations are substantiated) to be accessible to the human resources or legal functions such that during the initial complaint intake process described above, any prior complaints and investigations relating to the same individual or group of individuals can be taken into account to identify any recurring issues or systemic violations.
Vietnam
Vietnam
- at Le & Tran Law Corporation
- at Le & Tran Law Corporation
Vietnamese law does not provide for a period during which the outcome of the investigation should remain on the employee’s records and files. However, this will depend on the employer’s record-retention policies, which must comply with applicable data protection laws.