Workplace Investigations

Contributing Editors


Workplace investigations are growing in number, size and complexity. Employers are under greater scrutiny as a result of developments like the #MeToo and Black Lives Matter movements, as well as the rise of ESG. The covid-19 pandemic has further increased the focus on workplace culture, whether in person or remote. 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 23 major jurisdictions around the world.  

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

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01. What legislation, guidance and/or policies govern a workplace investigation?

01. What legislation, guidance and/or policies govern a workplace investigation?

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Australia

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

Before commencing a workplace investigation, an employer must review the terms of any applicable employment contract, policy, procedure or industrial instrument. These documents will likely contain clauses that will dictate the investigation process.

There is also a significant body of common law that dictates how an investigation should be conducted and the procedural fairness that should be afforded to those involved. To ensure a workplace investigation is procedurally fair, employers must consider several factors, including:

  • putting all allegations to the respondent;
  • conducting the investigation in a timely manner;
  • providing the respondent with the opportunity to respond to the allegations;
  • conducting a fair investigation process;
  • making an unbiased (and not pre-determined) decision; and
  • permitting the respondent to involve a support person.

Employers should also consider the additional steps they can take to conduct a best-practice investigation, including:

  • being thorough and taking the time to plan the investigation;
  • communicating clearly and fairly;
  • considering whether the allegations are indicative of a wider workplace behaviour problem;
  • maintaining confidentiality; and
  • preventing victimisation.
Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

There is no specific legislation regarding a workplace investigation. In general, an employer has the right to investigate incidents at the workplace based on their authority over employees. However, the investigative powers of the employer are among others limited by the general right to privacy, which is also enshrined in Collective Bargaining Agreement No. 81 of 26 April 2002 to protect the privacy of employees concerning the control of electronic online data. If there are official complaints by employees due to sexual harassment, bullying or violence at work,  well-being legislation provides a specific procedure. Also, upcoming whistleblower rules include some specifications for an investigation, but at the time of publication these are not yet final (we refer to is in more detail below). The information below is only valid for workplace investigations in the private sector. The public sector has a set of specific rules and principles, which are outside the scope of this chapter.

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

Mainly, the Occupational Safety and Health Act (738/2002). In addition, the following also have relevance in connection to a workplace investigation: the Employment Contracts Act (55/2001), the Criminal Code (39/1889), the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces (44/2006), the Act on Equality between Women and Men (609/1986) and the Non-discrimination Act (1325/2014). In addition, the employer's own policies must be taken into consideration while conducting a workplace investigation.

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

No specific rules directly govern a workplace investigation in the event of employee misconduct. However, several rules, both legal and administrative, affect the conduct of such an investigation. In addition, codes of conduct, internal regulations or guidelines may also exist within companies.

A new law (No. 2022-401) coming into effect on 1 September 2022 will become one of the cornerstones of the future regulation of workplace investigations. This law transposes the European directive relating to whistleblower protection transposes into French law. It does not, however, constitute a revolution, as a previous French law dated 9 December 2016 (the so-called Sapin 2 Law) already provided the whistleblower with a specific status and protection. These laws are fundamental when considering an internal investigation as the rules protecting the whistleblower and requiring the establishment of an internal whistleblowing channel (eg, a dedicated email or hotline) affect the degree of flexibility available to companies in conducting the investigation.

More generally, not only do all the “pure” labour law rules relating to the protection of the human rights of employees need to be complied with (right to privacy, data protection under the GDPR, etc), but also the disciplinary rules and regulations that protect employees from unfounded sanctions imposed by their employer. For example, an employer can only sanction an employee's misconduct if the disciplinary procedure begins within two months of when the misconduct was committed or when the employer becomes aware of it. In this respect, an internal investigation can be necessary for the employer to obtain full knowledge of the facts alleged to have been committed by the employee. It is nonetheless recommended that the internal investigation be completed within these two months to avoid the risk of the disciplinary action being time-barred.

Administrative rules produced by the French anti-corruption agency should also be taken into consideration (good practice, guidelines and recommendations relating to senior management’s commitment to implement anti-corruption measures, corruption risk mapping, corruption risk management measures and procedures), as well as the guidelines produced by the French Ministry of Employment relating to the prevention of sexual harassment and gender-based violence or the recommendations of the Human Rights Defender, which is a French special institution aimed at protecting fundamental rights.

Finally, a company must take its own rules and regulations into account. Every company with at least 50 employees has the legal obligation to draw up internal rules and regulations, which notably set out the disciplinary sanctions applicable to employees, as well as a reminder of certain employees' rights.

Last updated on 15/09/2022

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Germany

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

There are no specific legislative requirements for workplace investigations in Germany. In 2020, the Federal Ministry of Justice presented a draft bill with regulations on internal investigations and, in particular, employee interviews. However, this law failed to pass under the previous government. The current government has announced it will take up this matter again and plans to create a precise legal framework for internal investigations. Details, timing and content remain to be seen.

Nevertheless, workplace investigations do not take place in a "lawless space". They must comply with the provisions of employment and data protection law. Further, criminal and corporate law aspects can play a role. Moreover, works council information and co-determination rights may have to be taken into account.

Last updated on 15/09/2022

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Hong Kong

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

The Employment Ordinance (EO), which is the primary legislation governing employment relationships in Hong Kong, does not provide for a statutory workplace investigation procedure.

The Labour Department of Hong Kong has, however, published a Guide to Good People Management Practices[1] which recommends that employers lay down rules of conduct, grievance and disciplinary procedures. Such rules should be simple and clear, logical and fair, and in line with the provisions in the EO.

As part of risk management and internal controls, Hong Kong-listed companies are expected by The Stock Exchange of Hong Kong Limited (SEHK) to establish whistleblowing policies and systems for employees to raise concerns about possible improprieties with independent board members. Listed companies are also expected to establish policies for the promotion and support of anti-corruption laws and regulations. Such policies and systems may include workplace investigation procedures.[2] If a listed company chooses to not establish such policies and systems, it is required to explain how it could achieve appropriate and effective risk management and internal controls.

 

[1] Hong Kong Labour Department, “Guide to Good People Management Practices” (June 2019) <https://www.labour.gov.hk/eng/public/wcp/practice.pdf>.

[2] SEHK, Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited, Appendix 14, Provision D.2.6, D.2.7. SEHK, “Corporate Governance Guide for Boards and Directors” (December 2021) <https://www.hkex.com.hk/-/media/HKEX-Market/Listing/Rules-and-Guidance/Corporate-Governance-Practices/guide_board_dir.pdf>.

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

There is no codified law in India on conducting workplace investigations, so they largely depend on the internal policies of the employer. Certain requirements and best practice measures have evolved through judicial precedent, and these are codified through internal policies.

For claims involving sexual harassment, however, investigations can only be undertaken by the Internal Committee (IC), which an employer needs to constitute under the Prevention of Sexual Harassment of Women and Workplace (Prevention, Prohibition and Redressal) Act 2013 (SH Act).  

The general principle laid down by the courts is that any action against an employee for misconduct should be taken after conducting a disciplinary inquiry as per the principles of natural justice (PNJ). Whether or not a disciplinary inquiry can be done away with in any circumstances is a very fact-specific assessment and depends on various factors, including but not limited to the seniority and location of employment of the employee, and the nature and circumstances of the alleged misconduct.

The PNJ broadly require:

  • that the accused employee should be issued with a written charge sheet or notice setting out the allegations against him or her along with a reasonable opportunity to respond;
  • appointment of an independent inquiry officer to assess whether the allegations are proven or not; and
  • that action must be taken based on the outcome of the inquiry, any punishment ordered should be proportionate to the gravity of the misconduct, and also take into account the service history (eg, prior warnings) of the individual.

The charge sheet or notice issued to the employee has to set out the evidence used by the employer to support the allegations in sufficient detail. Therefore, gathering necessary information and evidence is usually a critical precursor for any disciplinary process that an employer may eventually initiate against an employee.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

There is no legislation, guidance or policies governing workplace investigations in Ireland, other than the policies that an employer might put in place to deal with disciplinary issues, grievances, bullying and harassment and protected disclosures etc. However, the principles of fair procedure and natural justice governed by the Irish Constitution will always apply to workplace investigations. In the context of a workplace investigation, this will include, but is not limited to, an employee being:

  • entitled to know of any allegations made against them and by whom;
  • provided with any evidence that will be used against them;
  • given an opportunity to put forward their case and in some cases to cross-examine witnesses;
  • represented at disciplinary meetings;
  • informed of any decisions made; and
  • afforded a right of appeal.
Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

From an Italian employment law perspective, there is no specific body of legislation that governs investigations. However, several legal and case-law principles may be relevant concerning various specific aspects of investigations, and to which reference will be made below (eg, provisions under Law No. 300 of 1970, the so-called Workers’ Statute regarding “controls on employees”, both physical and “remote”, or regarding “disciplinary proceedings”).

In addition, and outside of the specific scope of employment law, other law provisions may have an impact on investigations, including those regarding privacy law (eg, Italian Legislative Decree No. 196 of 2003 and the Regulation (EU) No. 679 of 2016 (GDPR), regarding data protection and the related policies), whistleblowing (Law No. 179 of 2017 and Directive (EU) No. 1937 of 2019, regarding whistleblower protection) and criminal law (eg, Italian Criminal Procedure Code, providing rules for criminal investigation and Italian Legislative Decree No. 231 of 2001, regarding the corporate (criminal) liability of legal entities).

Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

There is no specific legislation, guidance or policies covering investigations in the workplace. Issues such as the Personal Data Protection Law, invasion of privacy, and infringement of freedoms may arise regarding the related parties, subjects, methods, and results of investigations. In addition, court decisions have stated that "when there has been a violation of corporate order, an investigation of the facts may be conducted to clarify the nature of the violation, issue business instructions or orders necessary to restore the disturbed order or take disciplinary action against the violator as a sanction”. The investigation or order must be reasonable and necessary for the smooth operation of the enterprise, and the method and manner of the investigation or order must not be excessive or restrain an employee's personality or freedom. In such a case, the investigation may be considered to be illegal and may constitute a tort.

Last updated on 15/09/2022

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Mexico

  • at Galicia

The Mexican Federal Labor Law (FLL) regulates the general aspects of employment and labour relationships in the private sector, from the different hiring procedures and statutory terms and conditions that should apply during employment, to the termination of employment, with or without cause.

The FLL, as amended on 30 November 2012, incorporated the definition of harassment and sexual harassment in connection with the workplace for the first time, and established such misconduct as grounds for justified termination.

Further, as a result of the amendments to the FLL on 1 May 2019, a new obligation for employers was included, consisting of implementing, in agreement with the workers or union, where applicable, a protocol to prevent discrimination for gender reasons; attend harassment, sexual harassment and workplace violence cases; and eradicate forced labour and child labour (Protocol).  The Ministry of Labour and Social Welfare (STPS) has disclosed a Protocol model for employers to implement.

Please note that the Federal Regulations on Safety and Health at Work (RFSST), enacted on 13 November 2014, establish an employer’s obligation to promote a favourable organisational environment and prevent workplace violence, for which employers must define,  implement and share internal policies for such purposes and establish safe and confidential mechanisms to receive complaints of workplace violence and practices contrary to a favourable organisational environment.

In addition to the above-mentioned obligation under the RFSST, the STPS issued, on 23 October 2018, the Mexican Official Standard on Identification, Analysis and Prevention of Psychosocial Risk Factors on the Workplace (NOM-035), defined as those that can cause anxiety disorders, non-organic disorders of the sleep-wake cycle and severe stress and adaptation issues, derived, among others, from workplace violence. The NOM-035 became fully effective by the end of 2020, requiring employers to establish and disseminate a policy for the prevention of psychosocial risks and workplace violence, as well as the promotion of a favourable organisational environment. Moreover, it mandates employers to have safe and confidential mechanisms for receiving complaints about practices contrary to a favourable organisational environment and to report acts of workplace violence. Likewise, under the NOM-035, employees must report any such acts.

Therefore, if an employer has effectively implemented the Protocol or comparable internal policies stipulating the procedure to attend to complaints and conduct investigations, such documents would need to be observed when leading a workplace investigation. 

For any internal policies to be enforceable against employees, including workplace violence and code of conduct or business ethics, the same should be issued by the Mexican employer entity (as opposed to a foreign holding company), made available to employees in Spanish, and with an acknowledgement receipt from employees. Often, a code of conduct is incorporated as an annex to the individual employment agreements or the Internal Work Rules.

Internal Work Rules, on the other hand, are a set of mandatory provisions for the employer and employee governing the day-to-day performance of the work including, among others, disciplinary measures and procedures to apply them. In general, employees have the right to be heard before the employer imposes a sanction.

To be enforceable, the Internal Work Rules must be registered before the competent labour authority, that is, the Federal Center for Labor Conciliation and Registration (CFCRL). Further, they have to be printed, delivered to employees, and published in a prominent place on the work premises (eg, bulletin board).

Additionally, specific laws could also apply depending on the type of investigation that is being conducted and its subject matter (eg, Federal or State Criminal Code, the Federal Law to Prevent and Eradicate Discrimination or the Mexican Law for Women’s Access to a Life Free of Violence.

Finally, it is important to note that the FLL provides for limited employee misconduct that constitutes grounds for dismissal, including a lack of probity and dishonest acts, disclosure of trade secrets, sexual harassment, attending work under the influence of alcohol or drugs, refusing to follow occupational health and safety regulations and disrupting work discipline.

Last updated on 15/09/2022

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Netherlands

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

Dutch employment law does not provide for a timeframe within which an internal investigation must be launched. However, it is important for an employer who suspects abuse or irregularities, to start an internal investigation without delay. In essence, that means that as soon as management, or – depending on the specific circumstances – the person who is authorised to decide on disciplinary sanctions against a certain employee, becomes aware of a potential abuse or irregularity, all measures to initiate an internal investigation should be taken promptly. If this is not done, the employer may lose the opportunity to take certain disciplinary actions.

The legal framework relating to an investigation by an employer into the acts and omissions of an employee are determined by, among other things, section 7:611 of the Dutch Civil Code (DCC) that stipulates good employer practices; Section 7:660 DCC (right to give instructions to the employee); the European Convention on Human Rights; the Dutch Constitution; the General Data Processing Regulation; and, if the employer uses a private investigation agency, the Private Security Organisations and Detective Agencies Act and the Privacy Code of Conduct for Private Investigation Agencies.

The legal basis from which the employer derives the authority to investigate can be based on the employer's right to give instructions (section 7:660 DCC). The employer has – to a certain extent – the right to give instructions to the employee “which are intended to promote good order in the undertaking of the employer” (pursuant to section 7:660 of the Civil Code). In many cases, an investigation of a work-related incident will aim to promote good order within the company. As such, the investigation is trying to:

  • find the truth;
  • sanction the perpetrator; and
  • prevent repetition.

Instructing an employee to cooperate with an internal investigation falls within the scope of the right to instruct.

Subsequently, the employer must behave as a good employer during the investigation, pursuant to section 7:611 DCC. This is coloured by the classic principles of careful investigation: the principle of justification, the principle of trust, the principle of proportionality, the principle of subsidiarity and the principle of equality. Furthermore, the principle of hearing both sides of the argument applies and there must be a concrete suspicion of wrongdoing.

Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP
  • The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
  • The Criminal Code Act
  • Penal Code Law
  • Money Laundering (Prohibition) Act 2011 (as amended)
  • Freedom of Information Act 2011
  • Terrorism (Prevention) Act 2013
  • Independent Corrupt Practices and other related offences Act 2000
  • Code of Conduct Bureau and Tribunal Act
  • Companies and Allied Matters Act 2020
  • Nigerian Code of Corporate Governance 2018
  • Economic Financial Crime Commission (Establishment) Act 2004
  • Investment Securities Act 2007
  • Central Bank of Nigeria Act 2007
  • Banks and Other Financial Institutions Act 2020
  • Whistleblowing Programme under the Ministry of Finance
Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

Pursuant to article 98 of the Portuguese Labour Code, the employer has a disciplinary power over its employees during the employment period. This is enforced through the initiation of disciplinary procedures – which can include a preliminary workplace investigation as provided for in article 352(1) of the Portuguese Labour Code – and ultimately the application of sanctions laid down by law or in an applicable collective bargaining agreement.

The Portuguese Labour Code governs disciplinary procedures, which can include a preliminary workplace investigation, in two different sections. On the one hand, articles 328 to 332 establish general rules regarding the imposition of disciplinary sanctions; statutory deadlines and statutes of limitations involved; decision criteria; penalties; and disciplinary records. On the other hand, articles 351 to 358 lay down the rules applicable to dismissals with cause, which are also widely understood to be applicable concerning conservatory sanctions (i.e. those that enable the continuity of the employment relationship).

Additionally, collective bargaining agreements may provide for different disciplinary penalties, as long as the rights and guarantees of employees are not impaired.

Workplace investigations must also abide by the general rules laid down in the Portuguese Constitution, Portuguese Civil Code and Data Protection Laws (including guidelines issued by the Data Protection Agency), as regards the personal rights of the employees.

Last updated on 15/09/2022

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Singapore

Singapore

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

A workplace investigation is usually governed by the employer’s internal grievance policy or contractual guidelines found in the employment contract or employee handbook. In the absence of the same, the default governing regime is as set out by the Ministry of Manpower (MOM) and the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) in its guidelines and advisories, which include:

  • the Tripartite Advisory on Managing Workplace Harassment;
  • the TAFEP Grievance Handling Handbook; and
  • the Tripartite Guidelines on Fair Employment Practices.

In addition, section 14(1) of the Employment Act 1968 provides that an employer is required to conduct “due inquiry” before dismissing an employee covered under the Employment Act 1968 without notice for misconduct. The Singapore Courts take the view that “due inquiry” suggests some sort of process in which the employee concerned is informed about the allegations and the evidence against him or her so that he or she has an opportunity to defend him or herself with or without evidence during the investigation process.

Further, there are numerous cases where the Singapore High Court has alluded to or implicitly accepted the application of the implied term of mutual trust and confidence in employment contracts that would oblige the employer to act reasonably and fairly during the investigation even though it is worth noting that the Singapore Court of Appeal has stated that the status of the implied term of mutual trust and confidence has not been settled in Singapore and that “[i]t remains an open question for the Court of Appeal to resolve in a more appropriate case, ideally with facts capable of bearing out a claim based directly on the existence of the implied term” (see [82] of Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2022] SGHC(A) 8).

Hence, any references to the application of the implied term of mutual trust and confidence in Singapore in this article must be read in light of the above.

Last updated on 15/09/2022

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South Korea

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

While there are no specific laws that regulate a workplace investigation, there are several laws that companies should consider when conducting a workplace investigation concerning alleged employee misconduct.

One key example is the Whistleblower Protection Act (WPA). The WPA provides legal protection to a whistleblower if their allegations are raised in good faith and are in the public interest as specified under the WPA. If the WPA applies, certain obligations apply to the company, including but not limited to the following:

  • the obligation to protect the confidentiality of the whistleblower’s identity;
  • protecting the whistleblower if the whistleblower suffers or is likely to suffer serious harm to life or health as a result of whistleblowing and the whistleblower requests protection; and
  • refraining from taking retaliatory action on the whistleblower.

Therefore, if an employee raises allegations of another employee’s misconduct, the company should review whether the allegations fall under the WPA.

There are also special laws that impose obligations on the company if there are certain types of allegations (eg, sexual harassment, workplace harassment).

In addition, when collecting and reviewing employees’ electronic data, such as emails or files stored in work laptops or company servers, which may contain personal information, the company should comply with data privacy laws discussed in more detail in questions 7 and 8.

Companies may also have internal policies (eg, whistleblower protection policies, Code of Conduct) that may apply to workplace investigations, aside from the requirements under Korean law.

Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

Spain has not passed any statutes, regulations or policies specifically governing workplace investigations. Instead, general employment and data protection legislation, which safeguards employees’ rights, is fully applicable during these types of enquiries.

These statutes focus on employee privacy. As a result, the application of this legislation:

  • limits the matters that may be investigated: they have to be relevant to the employment relationship and there has to be a legitimate reason to conduct the enquiry;
  • sets boundaries to the means that may be lawfully used by the company in the investigation: they must be the least intrusive means for employees’ rights (for instance, an email review should be a last resort, reserved for when less-invasive means are not available or would not be effective); and
  • states that the companies’ decisions during the investigation must be proportional in light of the facts under review and the legal consequences attached to them.

Collective bargaining agreements, which in Spain generally apply to every company within their scope of application (normally a given economic sector), may regulate workplace investigations. However, it is unusual for collective bargaining agreements to regulate workplace investigations.

Finally, major international corporations with a presence in Spain do tend to have an ethics or whistleblowing policy that governs how an investigation should be conducted. Even if these are self-imposed policies, they are contractually binding and, once established, must be respected by companies.

Last updated on 15/09/2022

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Sweden

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

Workplace investigations in Sweden are governed by several rules and regulations. Listed below are the central legislation and regulations that govern a workplace investigation related to alleged employee misconduct.

  • The Swedish Discrimination Act (2008:567).
  • The Swedish Work Environment Act (1977:1160), which is complemented by the Swedish Work Environment Authority’s other statutes.[1]
  • The Swedish Whistleblowing Act (2021:890).

If a workplace investigation has been initiated after the receipt of a report filed through a reporting channel established under the Swedish Whistleblowing Act, that law applies provided that the report has been filed by a person who may report under the Act and provided that the subject of the report falls under the material scope of the Act. The Swedish Whistleblowing Act implements Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law and has been given a wide material scope in Sweden. The Swedish Whistleblowing Act may apply if the reported irregularity concerns breaches of certain EU laws or if the reported irregularity is of public interest.

In addition to the regulations mentioned above, certain data protection legislation may affect workplace investigations by restricting what personal data may be processed. Such data protection legislation includes the following:

  • Regulation (EU) 2016/679 on the protection of natural persons concerning the processing of personal data and the free movement of such data (the GDPR);
  • the Swedish Supplementary Data Protection Act (2018:218);
  • the Swedish Supplementary Data Protection Regulation (2018:219);
  • Regulation DIFS:2018:2 on the processing of personal data relating to criminal convictions or offences. This regulation governs the processing of personal data relating to criminal convictions or suspected criminal offences in internal workplace investigations that are not governed by the Swedish Whistleblowing Act.[2]

The above-mentioned legislation and regulations may overlap in many aspects and it is therefore important before starting an investigation, as well as during an investigation, to assess which rules and regulations apply to the situation at hand. Another aspect of this is that many issues that can arise during an investigation are not regulated by law or other legislation. If the investigation is a non-whistleblowing investigation there are limited rules on exactly how and by whom the investigation should be carried out.

A Swedish law firm that undertakes a workplace investigation also has to adhere to the Swedish Bar Association’s Code of Conduct. The Code of Conduct includes additional considerations, mainly ethical, which will not be addressed in this submission. Furthermore, this submission will not focus on investigations following an employee’s possible misappropriation of proprietary information or breach of the Swedish Trade Secrets Act (2018:558). Investigations into such irregularities are often conducted to gather evidence and these investigations include the same or similar investigative measures used in other investigations, such as interviews with employees and IT-forensic searches, but also infringement investigations carried out by the authorities or other measures by the police.

 

[1] Mainly Systematic Work Environment Management (AFS 2001:1), Organisational and Social Work Environment (AFS 2015:4) and Violence and Menaces in the Working Environment (AFS 1993:2)

[2] Under Section 4 of DIFS 2018:2, personal data relating to criminal convictions or suspected criminal offences may only be processed if the personal data concerns serious misconduct, such as bribery, corruption, financial fraud or serious threats to the environment, health and safety, by an individual who is in a leading position or who is considered key personnel within the company. The processing of personal data received in a report or collected during an investigation governed by the Swedish Whistleblowing Act is instead governed by the Swedish Whistleblowing Act, which complements the GDPR and the supplementing Swedish act and regulation stated in item (ii) and (iii) above.

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

There is no specific legal regulation for internal investigations in Switzerland. The legal framework is derived from general rules such as the employer's duty of care, the employee's duty of loyalty and the employee's data protection rights. Depending on the context of the investigation, additional legal provisions may apply; for instance, additional provisions of the Swiss Federal Act on Data Protection or the Swiss Criminal Code.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

The Labour Protection Act BE 2541 (1998) (LPA) is the key legislation governing the relationship between employer and employee in Thailand. The LPA set out a minimum standard for the protection of employees’ rights, as well as a mechanism for suspension from work for an investigation.

The LPA requires any employer having ten or more employees to prepare work rules in the Thai language and the work rules require an employer to prescribe a procedure for the submission of grievances that would normally include the process for investigations in the workplace. Therefore, the work rules are the main guidance and policy that govern a workplace investigation. 

Last updated on 15/09/2022

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Turkey

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

There is no specific legislation governing workplace investigations in Turkish law. However, there are general principles stemming from Labour Law No. 4857 as well as good practice principles. Data protection laws also occasionally intertwine with these. The internal codes and policies of the company should also be followed throughout the process.

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

In the UK, the primary employment legislation of relevance to a workplace investigation includes the Employment Rights Act 1996 (ERA 1996), the Equality Act 2010 (EA 2010), and the Employment Relations Act 1999 (ERA 1999).

Other legislation includes the retained EU law version of the General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018), the Investigatory Powers Act 2016 (IPA 2016) and the Investigatory Powers (Interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018 (IP Regs 2018), and the Humans Rights Act 1998 (HRA 1998).

In terms of guidance, the Advisory, Conciliation and Arbitration Service (ACAS) have produced a Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) as well as a Guide to conducting workplace investigations. The Information Commissioner’s Office (ICO) have their Employment Practices Code, which has guidance on the data protection aspects of investigations (see question 7).

Most employers will have internal policies governing how workplace investigations should be conducted. The level of detail may vary considerably; public sector and regulated employers may be more prescriptive in their policies, which may even have contractual force. There may also be provisions of the employment contract that are relevant (particularly as regards suspension – see question 3).

Last updated on 15/09/2022

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United States

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

In the United States, any combination of legislation at the federal, state and local level, as well as judicial opinions and regulatory guidance interpreting those statutes, may impose obligations on relevant employers to undertake a timely internal investigation in response to complaints of workplace misconduct and to promptly implement remedial measures, where appropriate.

An employer’s written policies often also set forth the company’s expectations for how its employees, partners, vendors, consultants or other third parties will conduct themselves in carrying out the business of the company, and these policies may include protocols setting forth the parameters for an investigation in the event of potential non-compliance. Such investigatory roadmaps are often described in, for example, employee handbooks or a company’s policy against discrimination and harassment.

Due to the patchwork nature of employment and related laws, it is not possible to cover every investigation scenario or related legislation in this guide. Employers should instead consult with experienced employment attorneys in their state to ensure compliance with the applicable legal and regulatory regimes. 

Last updated on 15/09/2022

02. How is a workplace investigation usually commenced?

02. How is a workplace investigation usually commenced?

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Australia

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

A workplace investigation will generally be triggered by an employee making a complaint; however, issues may also be brought to the attention of an employer through an anonymous tip, by suppliers or contractors, from customers or because of observations and hearsay.

Complaints can be made directly to Human Resources (HR), anonymously, by email to a line manager or a third party. While complaints do not need to be written and can be informal, brief or verbal, complaints of this nature can make the process harder and more information may be required.

The receipt of a complaint does not necessarily mean that an employer needs to undertake an investigation immediately. A grievance policy ordinarily contains a multi-step approach to dealing with complaints, starting with internal resolution options such as informal discussions, conciliation and mediation. However, an investigation should be commenced where:

  • the complaint alleges serious misconduct or unlawful conduct;
  • the employer is required to conduct a workplace investigation as per an employment contract, policy, procedure or industrial instrument; or
  • the complaint is complex and requires clarity on what has occurred to establish the facts.
Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

First, the employer should appoint an investigator or investigative team that will be responsible for conducting the investigation. Next, the employer or the investigators might think about communicating with the involved employees. It depends on the situation if this is a good idea or not. In general, it can be recommended that the employer is transparent towards the involved employees and openly communicates about the (start of the) investigation process. This is definitively the case if it is already clear that the involved employees are under scrutiny because of their actions. In this case, the actual investigation can begin with a hearing of the involved employees. However, if there is a risk that employees will hide or destroy evidence or will collude to prevent the employer from finding the truth, the investigation can also start without any communication. In this case, it would be better to start collecting evidence before hearing from the employees involved.

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

When the employer becomes aware of possible misconduct, the employer must commence an investigation immediately, in practice within about two weeks. The information may come to the employer's knowledge via, for example, the employer's own observations, from the complainant or their colleagues or an employee representative.

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

When a report of wrongdoing is brought to the employer's attention, whether through a whistleblower or another channel, and an internal investigation is expected, it may be either mandatory or optional, depending on the facts of the alleged wrongdoing.

The investigation will be mandatory when the alleged wrongdoing relates to an ethical issue according to anti-corruption regulations, the employer’s duty of due diligence regarding, for example, human rights or environmental matters, or where the works council has issued an alert relating to a “serious and imminent danger”, but also whenever it relates to the employer's obligation to ensure employee safety (eg, moral or sexual harassment).

If the investigation is not mandatory, it is up to the employer to decide whether or not to carry out the investigation. Several key questions can help the employer determine whether or not it is appropriate to carry out an investigation, such as:

  • What are the benefits of doing nothing? The company will have to draw up a list of the pros and cons of an investigation, bearing in mind that in some cases a poorly conducted investigation could make the situation worse;
  • What is the priority (eg, obtaining or securing evidence, or correcting the irregularity)?
  • What rules or codes of ethics must the company comply with?
  • Should external legal counsel only advise the company or should they play a major role in the investigation process by becoming an investigator?
Last updated on 15/09/2022

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Germany

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

Typical triggers for a workplace investigation may be internal hints (eg, from employees), internal audits, compliance or the legal department. However, investigations by the public prosecutor or other authorities can also lead to a workplace investigation.

There are no strict guidelines for the course of the investigation. The measures to be taken and the sequence in which they will be carried out to clarify the facts must be decided on a case-by-case basis. However, the first step should be to secure evidence. All relevant documents and records (eg, e-mails, hard disks, text messages, data carriers, copies) should be collected and employees may be interviewed. The second step should be to evaluate the evidence and the third step is to decide how to deal with the results (eg, whether any disciplinary measures should be taken or the intended procedures should be adjusted).

Irrespective of how a workplace investigation is commenced, when it comes to severe breaches of duty by an employee, a two-week exclusion period for issuing a termination for cause must be observed at all stages. This two-week period starts when the employer becomes aware of the relevant facts but is suspended as long as the employer is still investigating and collecting information, provided that the investigation is carried out swiftly.

Last updated on 15/09/2022

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Hong Kong

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

The circumstances in which an employer commences a workplace investigation may vary. However, it is common that an employer will consider it necessary to commence a workplace investigation upon receipt of a complaint concerning a fellow employee. Sometimes, the complaint may be made anonymously. If the employer considers there to be substance in the complaint, it may commence an investigation to find out the truth of the matter, resolve the complaint and, if necessary, improve its systems and controls to prevent the reoccurrence of any misconduct.

A workplace investigation may be warranted if the employer receives an enquiry from a regulator concerning its affairs or an employee’s conduct. The investigation findings could enable the employer to respond to the regulator (which could be a mandatory obligation) and at the same time assess its risk exposure.

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

As a precursor to the actual disciplinary process, investigations are usually initiated when the employer becomes aware of an allegation or complaint of misconduct, or observes any acts or omissions by an employee constituting workplace misconduct. The employer (or investigating committee – which could also be an outside agency like an auditor or law firm appointed by the employer) would generally commence the investigation by speaking with the complainant (or whistleblower) to gather as many details as possible (relevant facts, evidence, list of witnesses, etc) concerning the allegations, so that the next steps and approach can be determined upfront.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

There are numerous ways in which a workplace investigation might commence. A disciplinary issue may come to the attention of management and require an investigation, an employee may raise a grievance necessitating an investigation or a worker may disclose a relevant wrongdoing that came to light in a work-related context that requires further investigation.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

Generally speaking, a workplace investigation can commence either as a consequence of facts reported by employees or third parties (either anonymous or not), for instance within a whistleblowing procedure or as part of normal and periodical activity carried out by internal auditing.

Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

The trigger for an investigation in the workplace may be:

  • when an employee makes a report (eg, a report of harassment, a report of misconduct by another employee, etc);
  • when an investigation is conducted by the Labour Standards Inspection Office or another regulatory agency;
  • when a criminal or illegal act is discovered in the workplace; or
  • when an internal audit conducted by the company reveals a problem.
Last updated on 15/09/2022

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Mexico

  • at Galicia

The FLL does not provide a detailed plan or guidelines to conduct an investigation; however, investigations typically commence due to complaints made by either the affected employee, peers who have witnessed misconduct or malpractice, whistleblowers, or the accused employee’s direct supervisor.

As mentioned, an employer must establish safe and confidential mechanisms for receiving complaints, such as an ethics hotline. Employees can make a telephone call to report a case or send an email. It is important that the hotline is available to employees in Spanish and provides the option to disclose information on an anonymous basis to prevent retaliation.

Once the complaint is made, either the contact person appointed under the Protocol or policy for the hotline, or the appropriate internal committee for complaints, will analyse the case or determine whether or not to follow up with the investigation.

Members from diverse responsibility areas, such as Legal, Human Resources, Corporate Governance or Compliance, should preferably populate the committee for complaints and their follow-up.

If the Protocol, a similar policy or Internal Work Rules have been implemented, both the employees and the employer should abide by their exact terms and procedures.

In certain cases and depending on the type of misconduct, an anonymous or confidential investigation would not be necessary. Rather, the employer may prepare a fact-finding report known as “administrative minutes”.

In these circumstances, the employee will be interviewed by the employer’s representative (eg, a Human Resources Manager) on the specific events, allowing the employee the opportunity to give his or her version of what happened and state his or her defence.

Witnesses (eg, co-workers) may also contribute to the report, disclosing the events of which they are aware. The report should contain the exact date, place and complete names of the parties who intervened in its preparation, and the same should sign it. If the investigated employee refuses to sign the report, witnesses shall attest such circumstance.

Using the fact-finding report, employers build evidence to support a potential termination for cause and further deliver a dismissal notice to the investigated employee.

Where applicable, a representative of the union party to the collective bargaining agreement (CBA) in force at the work centre shall accompany the unionised employee being investigated, depending on the contents of the CBA or Internal Work Rules.

Last updated on 15/09/2022

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Netherlands

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

The workplace investigation can be exercised by an internal (ad hoc) investigation department of the company itself, for example under the direction of the internal audit department or compliance department. This is possible if there is sufficient manpower with the necessary independence, knowledge and experience. Case law, however, shows that courts tend to be more critical of internal investigations than external investigations. For more complex and sensitive investigations, a forensic accountant or lawyer is often involved. The advantage of involving a lawyer is that the investigation and its outcome are covered by privilege. This guarantees the confidentiality of the investigation, also regarding supervisors and investigating authorities. Yet, at the same time, there is increasing debate about the role of lawyers as investigators, given their inherent bias to work in the interests of their client (the employer).

The investigation starts with a plan of approach that must be signed by the contractor. This plan of approach outlines the legal framework of the investigation, such as the scope, the means to be used, how it will deal with data, the use of experts, how the interviews will be conducted, the way of reporting and confidentiality. Furthermore, there must be a protocol for how the investigator conducts the investigation and that applies to all parties involved.

Gathering information can be done in various ways. For example:

  • An inventory can be made of the household effects of a company. In the event of theft, an inventory can be an appropriate means of establishing exactly what has been stolen.
  • An investigation of the books: this is an investigation of all documents of the company. These are not private documents of employees, but documents of the company itself. For an investigator, an interview can be a good way to gather more information, for example by interviewing witnesses. In practice, there are almost always several interviews with the suspects, employer and other people involved.
  • Open source research, which often involves researching a person's social media, or public documents relevant to the research. In principle, “open sources” refers to all public documents in the world; nowadays, many public documents are digitised.
  • A workplace search includes everything present in the workplace: diaries, computer files, e-mails, letters, and even the contents of a wastebasket.
  • A digital data investigation is a frequently used tool in fraud investigations. Most communication and documents are digital nowadays. It is, therefore, very likely that evidence can be found in digital data. Each of these means of investigation must respect the principles of an internal investigation and comply with the GDPR principles.
Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

A workplace investigation is conducted to verify alleged misconduct within a workplace.[1]  Once a complaint is made regarding wrongdoing, misconduct or unethical behaviour by an employee or group of employees within a workplace, an investigation is required to confirm the complaint and if it is confirmed, the body in charge of supervising the employees (usually the HR specialist, disciplinary committee or line managers) determine and implement necessary corrective or disciplinary actions.

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

Having been informed of an alleged infraction committed by an employee, the employer must prepare a detailed written accusation and notify the employee.

Moreover, if the alleged infraction constitutes gross misconduct and the employer is considering dismissal, a formal statement of the employer’s intention to dismiss the employee should accompany the accusation. If this is not expressly done, the employer will be unable to dismiss the employee and may only apply one of the conservatory sanctions. A copy of these documents must be sent to the works council, if any, and, should the employee be a union member, to the respective trade union.

Notwithstanding this, if before preparing the accusation the employer needs to further investigate the facts and circumstances, it may open a preliminary investigation aimed at collecting all the facts and circumstances and conclude if there are grounds to bring an accusation against the employee.

The preliminary investigation must start within 30 days of the employer becoming aware of the facts, be diligently carried out (but with no maximum period laid down by law) and concluded within 30 days of the last investigatory act. Furthermore, the preliminary investigation will suspend the relevant statutory deadlines and statutes of limitations (ie, 60 days from the date of acknowledgment, by the employer or a supervisor with disciplinary power, of the facts to enforce disciplinary action against the employee and one year from when the facts occurred, regardless of the employer’s acknowledgment, unless the infraction also constitutes a criminal offence, in which case the longer statutes of limitation established in criminal law will apply).

Last updated on 15/09/2022

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Singapore

Singapore

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

A workplace investigation usually commences with the receipt of feedback, a complaint or a grievance, by named or anonymous persons, in respect of a work-related matter or event, or the conduct of an employee.

Last updated on 15/09/2022

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South Korea

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

There are many different ways a workplace investigation concerning employee misconduct could commence. Below are some key examples from our experience:

  • an employee reports allegations concerning another employee’s misconduct through an ethics hotline or other means (eg, email, phone call);
  • an outsider such as a former employee or a vendor reports allegations concerning employee misconduct to a company officer;
  • an internal audit reveals potential employee misconduct;
  • media reports raise allegations of employee misconduct; and
  • an external investigation begins (eg, by criminal authorities or administrative agencies) concerning alleged employee misconduct.
Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

Given that Spain lacks legislation in this area (see question 1), each company commences workplace investigations following its internal guidelines, policies or practices, if any. In our experience, investigations begin with a formal decision to commence the enquiry, which is set out in writing for record-keeping purposes.

This decision will normally mention:

  • the facts that will be investigated;
  • the reasons to investigate the facts (eg, they could be a breach of company policies);
  • how the investigation will be conducted; and
  • the individuals who will conduct the enquiry.

Depending on the company, the decision to initiate the investigation may take the form of a decision by the competent employee or officer (ethics or compliance officer) or the minutes of the relevant corporate body (board of directors or compliance committee).

Last updated on 15/09/2022

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Sweden

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

An investigation can be initiated in several ways. It is usually as a result of whistleblowing or a report on work environment deficiencies, or through other channels (eg, HR, the police, media coverage).

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

Internal investigations are usually initiated after reports about possible violations of the employer's code of conduct, applicable laws or regulations have been submitted by employees to their superiors, the human resources department or designated internal reporting systems such as hotlines (including whistleblowing hotlines).

For an internal investigation to be initiated, there must be a reasonable suspicion (grounds).[1] If no such grounds exist, the employer must ask the informant for further or more specific information. If no grounds for reasonable suspicion exists, the case must be closed. If grounds for reasonable suspicion exist, the appropriate investigative steps can be initiated by a formal investigation request from the company management.[2]

 

[1] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 21.

[2] Klaus Moosmayer, Compliance, Praxisleitfaden für Unternehmen, 2. A. München 2015, N 314.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

Usually, a complainant submitting a grievance to the company would be a trigger for proceeding with a workplace investigation. The LPA does not specify when a workplace investigation should commence but it is subject to the employer’s work rules and regulations as the investigation usually commences after an employee has filed a complaint to the employer. In some cases, there might be a whistleblower and the start of the workplace investigation would be subject to the employer’s discretion. Also, if a questionable transaction or activity is detected, fiscal audits may be the source that triggers a voluntary workplace investigation.

Last updated on 15/09/2022

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Turkey

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

The need to initiate an internal investigation may arise from the receipt of information from various sources. Reporting is one of the most common sources and can be in different forms. In Turkey, while conventional methods such as reporting to a direct supervisor, human resources or executives is quite common, whistleblowers also use reporting mechanisms such as web-based forms, telephone hotlines or e-mail, if such mechanisms exist. It is critical to obtain as much information as possible from the complainants at this initial contact, to make a sound decision on whether or not to commence an investigation. There is no requirement to decide to start an investigation and it can be commenced through a corporate resolution (eg, ethics committee resolution or board resolution) of a decision-making body or a decision of the body or person who has such authority under the company policies. The investigation team who will conduct the process may also be approved by the company's decision-making body. It is also advisable to have a preliminary inquiry for the complaints, before commencing a fully-fledged investigation.

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

The trigger could come from several sources, such as a grievance from a current or former employee, a complaint from external sources, a whistleblowing disclosure, or as the result of internal governance measures.

In each case, the employer will need to decide if an investigation is warranted. It may be required by internal policies or regulatory requirements in some circumstances. Consideration must be given to whether an investigation is feasible; for example, is the evidence still in existence and accessible? Are key witnesses still employed or contactable?

If the employer concludes that an investigation is warranted, it should start without unreasonable delay. The first step would usually be to set terms of reference, which outline the purpose and remit of the investigation. These should be closely drafted and continually referred to, to avoid the investigation’s scope expanding when new points arise (as they almost always will). An investigator will also need to be appointed (see question 4).

Last updated on 15/09/2022

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United States

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

A workplace investigation is often, although not always, prompted by a complaint of workplace misconduct, usually made directly by the employee who was harmed by the conduct, a third party who witnessed the conduct, or a manager or supervisor who was made aware of the issue and has reporting obligations as a result of his or her role in the organisation. 

It is best practice – and often a legal requirement depending on the applicable state law – for companies to clearly outline a complaint process in their policies and to provide employees who experience, have knowledge of, or witness incidents they believe to violate the company’s policies with one or more options for making a report. Although the specific complaint procedure may vary depending on the size of the organisation, the nature of the business and the type of complaint at issue, many companies provide for (or require) making a report through one of the following channels:

  • a company-managed hotline or online equivalent;
  •  human resources;
  • an affected employee’s supervisor or manager; or
  • a member of the legal or compliance department.    
Last updated on 15/09/2022

03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)? 

03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)? 

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Australia

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

It is an important consideration as to whether any of the employees involved in the investigation should be suspended, stood down or asked to undertake alternative duties for the period of the investigation. This decision will need to be made taking into consideration the nature of the complaint, any further damage to workplace relationships that could be caused by employees continuing to interact with each other, and potential work, health and safety issues.

It should not be automatic that the respondent is suspended as the employer will need to consider whether this is necessary in the circumstances. However, a period of suspension should be considered where:

  • the allegations involve serious misconduct;
  • there is a risk that the conduct will continue throughout the investigation;
  • the respondent’s presence could exacerbate the situation; or
  • the respondent’s presence could be disruptive to the investigation.

As an alternative to suspension, other options include working from home, performing amended duties or moving to a different workspace.

If an employee is suspended then they should ordinarily receive their full pay for this period. There are some exceptions to this, for example, if the employee is a casual employee or if a policy, employment contract or other industrial instrument allows the employee to be suspended without pay.

Generally, there is no minimum or maximum period a suspension should last, as this will depend on the length of the investigation.

Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

In principle, you cannot unilaterally suspend an employee during a workplace investigation, as there is a risk of constructive dismissal (ie, wrongful termination of the employment contract by the unilateral modification of one of its essential elements). Consequences could include the payment of an indemnity in lieu of notice based on seniority as foreseen by the Employment Contracts Act, plus possible damages (three to 17 weeks remuneration if an unreasonable dismissal, plus alternative or additional damages based on real prejudice suffered). The parties can nevertheless agree on a suspension of the employment contract. In this scenario, the remuneration will still have to be paid. Furthermore, a suspension could be a sanction that follows the outcome of the investigation, but even then it will only be possible for a limited time (and a suspension without pay is usually only allowed by the courts for a maximum of three days). However, if the complaint is about sexual harassment, bullying or violence at work, the prevention advisor (see question 4) can recommend that the employer take certain actions, which in grave circumstances could lead to employee suspension. The suspended employee should continue to receive his pay if this occurs.

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

There is no legislation on temporary suspension in the event of a workplace investigation or similar. In some situations, the employer may relieve the employee from their working obligation with pay for a short period.

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

An employee may be suspended or relocated during a workplace investigation by:

  • suspending the employee as a precautionary measure (eg, pending a confirmation of dismissal);
  • temporarily assigning the employee to another site; or
  • exempting the employee from having to work while continuing to pay them their salary.

The employee can be suspended as a precautionary measure, pending confirmation of dismissal, but this implies that disciplinary proceedings have already begun and that the investigation is therefore at a relatively advanced stage and that there is sufficient evidence to suggest the need for disciplinary action. It should be made clear to the employee that the suspension is a provisional measure (in the absence of specifying this, the suspension could be interpreted as a disciplinary layoff constituting a sanction and, in some jurisdictions, as depriving the employer of the possibility of dismissing the employee for the same facts).

Temporary reassignment can also be considered. However, this contractual change must not apply for long and the measure taken must be temporary. The employer must act promptly – the measure is only valid for as long as the investigation continues. Failing this, and because of the absence of concurrent disciplinary proceedings, there is considerable risk that the temporary reassignment may be reclassified by a judge as an illegal modification of the employment contract or as a disciplinary sanction preventing the employee from subsequently being dismissed.

Finally, paid exemption from work is also possible and consists of temporarily suspending, by mutual agreement, the obligation of the employer to provide work for the employee and the employee’s obligation to work, without affecting their remuneration. Such a measure must generally be taken with the consent of the employee, because it implies a suspension (and therefore a modification) of the employment contract. This measure may be useful in temporarily removing an employee with whom the employer maintains a good relationship. This may be an employee who is or feels they are a victim of harassment, especially when the employee is not on sick leave.

Last updated on 15/09/2022

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Germany

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

Generally, under German employment law, an employee has a right to perform his[1] work and, therefore, suspending an employee would only be possible with the employee's consent. If an employer decided to suspend an employee without his consent, the employee could then claim his right to employment has been affected and seek a preliminary injunction before the competent labour court.

Unilaterally suspending an employee is, in principle, not permissible. Exceptions are made in cases where the employer has a legitimate interest. Typically, such legitimate interest exists after the employer has issued a notice of termination. During a workplace investigation, the employer may have a legitimate interest in suspending the employee, for example, if there is a risk that evidence may be destroyed, colleagues may be influenced, or the employee's presence may otherwise have a detrimental effect on the investigation or employer. Whether or not there is a legitimate interest must be assessed in each case. In practice, it is rare for employees to take legal action against a suspension.

In any event, during a suspension, the employee would be entitled to further payment of his salary without the employer receiving any services in return.

 

[1] The pronouns he/him/his shall be interpreted to mean any or all genders.

Last updated on 15/09/2022

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Hong Kong

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

It may be appropriate to suspend an employee during a workplace investigation, for instance, where the investigation has revealed misconduct on his or her part (even on a preliminary basis), or his or her continued presence in the business would hinder the progress of the investigation. However, the employer will have to consider the relevant legislative provisions and the terms of the employment contract before making any decision on suspension.

Under section 11 of the EO, an employer may suspend an employee without pay pending a decision as to whether the employee should be summarily dismissed (up to 14 days) or pending the outcome of any criminal proceedings against the employee arising out of his or her employment (up to the conclusion of the criminal proceedings). If an employee is suspended as above, however, the employer may terminate his or her employment without notice or payment in lieu of notice.

It is more common for an employer to suspend an employee with pay during an investigation concerning his or her conduct rather than exercising its statutory right as mentioned above. This could avoid an unnecessary dispute with the employee concerned. Indeed, it is common for employers to include in employment contracts specific provisions to give themselves the right to suspend an employee with pay in certain circumstances. The provisions normally set out the circumstances in which the employer may exercise the right, the maximum period of suspension and other arrangements during the suspension period (eg, how the employee’s entitlements under the employment contract are to be dealt with).

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

Yes, an employee can be suspended or placed on administrative leave during an investigation if the circumstances warrant it. It is recommended to include the right to suspend in employee-facing policies. The employee should be informed about the suspension in writing, by issuing a suspension letter. In practice, a suspension is used when the charges against the employee are serious or if the employee’s presence at the workplace is likely to prejudice the investigation in any manner (eg, where there are concerns that evidence may be tampered with or witnesses pressurised). The requirement to suspend the employee should be assessed on a case-by-case basis and should not be exercised in every instance. If an employee is suspended, the investigation and inquiry should be completed as quickly as possible.

Further, concerning payment during the period of suspension, the law varies depending on the state and the category of employee. Generally, Indian law requires that individuals who are “workmen” be paid a subsistence allowance during the period of suspension, usually at the rate of 50% of their regular wages during the first 90 days of the suspension, and at varying rates thereafter. The exact rates at which subsistence allowance is paid will vary from state to state. In our experience, many companies choose to suspend employees with full salary even if there is an applicable subsistence allowance statute. This helps take some pressure off of the timeline within which the investigation and subsequent disciplinary inquiry can be completed.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

As the consequences of suspension for the employee are quite grave, an employer should carefully consider whether suspension is necessary before deciding to suspend an employee. In addition, suspension with pay in advance of or during a workplace investigation should not be confused with suspension following a finding of misconduct, at which point suspension (without pay) might be imposed as a punishment. Suspension during an investigation might be considered where failure to suspend might impede the employer’s ability to conduct a fair investigation (ie, where there is a concern that the employee under investigation might interfere with witnesses or cause damage to the employer’s reputation) or where there are concerns about the safety, health and welfare of others. In such circumstances, suspension with pay might be considered for no longer than is absolutely necessary to allow the investigation to be concluded as quickly as possible, consistent with fair procedure. If the employee remains suspended for a long or indefinite period, questions will arise as to whether that employee could in reality return to the business. The right to suspend with pay depending on a workplace investigation should be contained in the employee’s contract of employment or in the relevant workplace policy under which the investigation is being conducted. Alternatives should be considered beforehand.

In other circumstances, an employee under investigation may agree with an employer to go on “special paid leave” until the investigation and any subsequent disciplinary process, for example, has been concluded.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

In general, from an Italian employment law perspective, there is no specific legal rule governing the suspension of an employee during a workplace investigation.

However, it should be noted that:

  • certain National Collective Bargaining Agreements (NCBAs) may provide, in particular circumstances, for the possibility of suspending (with pay) an employee (eg, when the employee is under criminal proceedings – as stated, for example, in the NCBA for executives of credit, financial and investment companies);
  • according to well-established case law, the employer may suspend the employee from work (with pay) in the framework of a disciplinary procedure (which, according to Italian law, must be followed before applying any disciplinary sanction, including dismissal[1]), where the facts behind the procedure are sufficiently serious;
  • certain case-law decisions have also stated that – even in the absence of a disciplinary procedure – the employer may suspend (with pay) the employee when it has very serious suspicions of an employee’s unlawful conduct, and for the time that is strictly necessary to ascertain his or her liability.

The above may be done by the employer, for instance, if keeping the employee in service may cause a risk of tampering with evidence or a risk of damage to the physical safety of other employees or company property.

Normally, in the above-mentioned circumstances, the suspension is with pay and with job security.

[1] The steps of the disciplinary procedure can be summarised as follows: (i) the employer must send a letter to the employee in which the disciplinary facts are described in detail and precisely; (ii) the employee can submit his written or oral defence to the employer within five days from receiving the letter (or different term provided under applicable collective bargaining); during this period, the employer cannot take any punitive measures against the employee; (iii) after receiving the employee’s defence (or, if the employee has not submitted any defence within the relevant term), the employer may serve the executive with a notice of dismissal (certain NCBAs set a term within which a sanction, if any, should be applied by the employer). Failure to comply with the procedure results in the dismissal being null and void. According to the law, the dismissal takes effect from the commencement of the disciplinary procedure itself.

Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

Court precedent states that a valid requirement for a stay-at-home order is it “would not be considered to put employees at a legal disadvantage (deprive them of their rights and imposes obligations on them), except in exceptional cases where employees are legally entitled to request work, unless there are special circumstances such as discrimination in salary increases and the like." (Tokyo High Court decision 25 January 2012, All Japan Mariners' Union). Therefore, it is considered possible to order the employee to stay at home during the investigation period if necessary. Some companies stipulate in their work rules that they may order employees to take special leave or stay at home when an incident occurs that could be the subject of disciplinary action.

In principle, the payment of salary in full during the stay-at-home period is required. However, work rules may stipulate that an employee will not be paid during the investigation period, and in cases where the employee is clearly responsible and it is inappropriate to allow the employee to work (eg, where it is almost certain that the employee has embezzled money on the job), the employee may be ordered to stay at home without pay. In addition, if the work rules stipulate that an absence allowance under the Labour Standards Law (60% or more of wages) must be paid for the stay-at-home period, such an allowance may be paid under the said rules.

Last updated on 15/09/2022

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Mexico

  • at Galicia

The FLL strictly regulates the suspension of employment and reserves that action to limited cases. The suspension of the employment relationship means that the employee is temporarily released from an obligation to provide his or her personal subordinated services and, consequently, the employer is released from an obligation to pay the employee a salary.

The FLL does not provide for employee suspension during a workplace investigation. However, it establishes that the suspension of employment can be imposed as a disciplinary measure or sanction on the employee for up to eight days without pay. Any suspension exceeding this would be considered wrongful termination (ie, without cause).

Please note that the Protocol model issued by the STPS, on the other hand, provides the possibility to implement protection measures based on the seriousness of the offence being investigated, mainly to safeguard the integrity of the complainant and the labour environment during workplace violence or harassment investigation cases. Protection measures include the following:

  • relocation of the presumed victim or the aggressor to another work location;
  • authorizing remote (home office) work, where applicable;
  • amendment of the work schedule of any of the involved parties;
  • where appropriate, paid leave during the investigation; and
  • actions to raise awareness, including campaigns against workplace violence or training.

In light of the above, employees cannot be suspended during a workplace investigation, but rather the suspension can be a disciplinary action once the investigation has been concluded. If deemed necessary, the employer may grant paid leave to both the complainant and the alleged aggressor during the investigation. In such cases, the paid leave should be recorded and signed by the investigated employee.

Last updated on 06/09/2022

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Netherlands

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

Suspension is usually a disciplinary measure. The employer may, for example, suspend an employee if it is necessary that the employee  doesn't work during the investigation into their actions or omissions. Suspension has no specific legal basis in Dutch law, but several conditions can be derived from case law or collective labour agreements.

Overriding interest

The measure may only be taken if the employee's presence at work would cause considerable harm to the employer's business or if, due to other compelling reasons that do not outweigh the employee's interests, the employer cannot reasonably be expected to tolerate the employee's continued presence at work. If there is a well-founded fear that the employee will (among other things) frustrate the investigation into his or her actions, the employer may proceed to suspend the employee.

Procedural rules

The principle of acting in line with good employment practice (section 7:611 DCC) plays an essential role in the question of the admissibility of the suspension. The principle of due care leads, among other things, to a duty of investigation for the employer and means the employer must enable the employee to respond adequately to any accusations.

Contractual arrangements

Many collective agreements or staff handbooks contain regulations on suspension and deactivation. The regulation may concern the grounds, the duration or the procedure to be followed. The latter includes rules on hearing both sides of the argument, the right to assistance, how the decision must be communicated to the person concerned, and the possibility of “internal appeal” and rehabilitation. Under good employment practice, the employer must proceed swiftly with the investigation and allow the employee to respond to the results. If the employee hinders the investigation in any way, it can be a reason to continue the suspension during the investigation.

Pay

In 2003, the Supreme Court ruled that suspension is a cause for non-performance of work that must reasonably be borne by the employer according to section 7:628 DCC. The employee has a right to be paid in nearly all circumstances, with limited exceptions (eg, if the employee is in detention and the employer suspended the employee in response to that).

Duration

The duration of the suspension during a workplace investigation is not legally pre-determined. However, the suspension of an employee must be a temporary measure. The relevant collective agreement often stipulates how long the suspension may last.

Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Yes, an employee can be suspended during an investigation to allow the employer to investigate the allegations against the employee unhindered and without undue interference by that employee. A suspension under the law merely prevents the employee from discharging the ordinary functions of his or her role without any deprivation of his rights during the period of the suspension. Thus, unless there is an express provision in the contract of employment or employee’s handbook stating that the employee can be suspended with or without half pay, the employee would be entitled to a full salary.

Further, the duration for which the employee may be suspended should be as contained in the employee’s contract, employee’s handbook, or letter of suspension.

In the recent case of GLOBE MOTORS HOLDINGS NIGERIA LIMITED v. AKINYEMI ADEGOKE OYEWOLE (2022), the court held, “Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is recalled or formally terminated or dismissed. Pending his recall or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension”.

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

After the employee is notified of the accusation, the employer may decide on a preventive suspension of the employee if the employee’s presence on company premises is deemed problematic. In this case, the employee’s salary will continue to be paid.

As per article 330(5) of the Portuguese Labour Code, a preventive suspension may also be determined during the 30 days before the accusation is made, provided that the employer, in writing, justifies why is necessary (eg, for interfering with the inquiry) and why the accusation cannot be served at that moment.

Last updated on 15/09/2022

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Singapore

Singapore

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

Yes. Section 14(1) read with 14(8) of the Employment Act 1968 provides that an employee can be suspended during a workplace investigation

However, pursuant to section 14(8) of the Employment Act 1968, the employer:

  • may suspend the employee from work for:
    • a period not exceeding one week; or
    • such longer period as the Commissioner for Labour may determine on an application by the employer; but
  • must pay the employee at least half the employee’s salary during the period the employee is suspended from work.

Section 14(9) of the Employment Act 1968 further states that if the inquiry does not disclose any misconduct on the employee’s part, the employer must immediately restore to the employee the full amount of the withheld salary.

In addition to the above legislative requirements, the company is required to also comply with its policies relating to such suspensions.

In terms of the threshold to be crossed before a suspension can take place, the Singapore Courts have highlighted that suspending an employee quickly as part of a “knee-jerk” reaction to an unclear or unspecific allegation with dubious credibility is arguably a breach of the implied term of mutual trust and confidence that exists in all employment relationships ([56] of Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2021] SGHC 123). The employer would need to have proper and reasonable cause to suspend an employee for disciplinary purposes ([56(d)] of Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577; [2013] SGHC 32), for example, where multiple credible sources claimed that they had been sexually harassed by an employee, and the employer had strong grounds to believe that if the employee was not suspended, the safety and wellbeing of the other employees in the organisation would be threatened.

In contrast, an employer is not entitled to suspend an employee during a workplace investigation where the employer has only received one complaint that has not been properly described or substantiated with sufficient details from an unverified or unreliable source against an employee who has a good track record with the organisation. This is especially so if the complaint is so unclear that further inquiries should be made before the allegation can be properly ascertained and characterised (see also [51] of Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2021] SGHC 123).

Last updated on 15/09/2022

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South Korea

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

The company may place an employee who is subject to a workplace investigation under administrative leave if this seems necessary or appropriate to ensure the integrity of the workplace investigation. While administrative leave can take different forms, one way is to issue a “standby order” to the relevant employee, instructing him or her not to come into work and prohibiting contact with other employees or customers while the workplace investigation is ongoing.

Administrative leave is not a disciplinary action, but rather an exercise of the company’s authority to take personnel management measures. This authority is generally subject to a “reasonableness” test, with the Korean courts balancing the employer’s business necessity in placing the employee on administrative leave with the inconvenience caused to the employee. In conducting the balancing test, the Korean courts have considered whether the employee receives pay during the leave and the duration of the leave, among other things. In general, if the duration of the leave is not excessive and is with full pay and benefits, the employer’s management prerogative is likely to be recognised.

The company doesn't need to obtain the employee’s consent but, in practice, a company should consider getting the employee’s acknowledgement that they have received the administrative leave notice.

In addition to Korean labour law, other factors such as the company’s rules of employment or a collective bargaining agreement (if any) may affect the company’s ability to place the employee on administrative leave, by providing for prescribed procedures for placing an employee on administrative leave or requiring the company to obtain the union’s consent if a union leader or executive is involved.

Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

Yes, a company may suspend an employee if it has valid grounds to believe that keeping an employee under investigation in his or her position during the enquiry could obstruct the investigation or become an obstacle to it (for example, the employee could try to conceal facts or influence other employees within the organisation).

The decision to suspend the employee must be communicated in writing. This will usually take the form of a suspension letter that explains the reasons that have led to the suspension, its expected duration and that the suspension is not a disciplinary measure. Since the suspension is not a disciplinary measure, the employee would be entitled to continue collecting his or her standard remuneration during the suspension.

In Spain, employees have the right to be effectively occupied during their employment. Therefore, the duration of the suspension should be limited in time to what is strictly necessary to avoid what led to the suspension in the first place.

Last updated on 15/09/2022

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Sweden

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

In general, an employee in the private sector may be temporarily suspended for a short period with pay and other benefits during a workplace investigation. The room for suspension without pay is, by contrast, very limited. The suspension should be limited in time and only be in force during the investigation, but can be repeated for (multiple) additional short periods if necessary to conclude the investigation. An assessment needs to be made on a case-by-case basis as suspension in some cases may be considered unlawful. If not executed with sufficient consideration of the employee’s interests, it may be considered a constructive dismissal or a breach of the employer’s work environment obligations. If the employee is unionised, trade unions sometimes request that the employer initiates consultations as part of a decision to suspend an employee.

In the public sector, the right to suspension is limited. There are also special regulations regarding the suspension of certain employees, for example, employees who are employed as permanent judges.

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

It is possible to suspend an employee during a workplace investigation.[1] While there are no limits on duration, the employee will remain entitled to full pay during this time.

 

[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 181.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

While an employee is being investigated by the employer, the LPA permits the employer to suspend that employee from work for the duration of the investigation, provided that the suspension can only be made when permitted by the work rules or an agreement related to the conditions of employment. Also, a suspension order must be made in writing and specify the offence and period of the suspension, which may not exceed seven days. Note that the employer must give a written suspension order in advance to the employee before the work suspension.

As forementioned, the LPA only permits the employer to suspend the employee under investigation from work only for seven days. During the interim period of the suspension, the employer must pay the employee at the rate indicated in the work rules or the agreement reached between the employer and the employee, which must not be less than half of the employee's wages for a working day before his or her suspension. If the employer determines that the employee subject to investigation is not guilty following the outcome, the employer must compensate the employee for outstanding wages from the date of suspension with 15% interest per annum.

In some complicated cases, a workplace investigation does not conclude within seven days, and, in which case the employer should consult with a legal advisor.

Last updated on 15/09/2022

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Turkey

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

An employee can be suspended during a workplace investigation provided his or her prior written consent is obtained to this effect during or immediately before the investigation. Obtaining a generic written consent from the employee regarding suspension, which is not tied to a specific event, will not be valid. If there is a suspension of employment due to the workplace investigation, the obligations of the parties arising from the employment relationship continue, except for the employer’s obligation to pay a salary (and provide benefits, if any) and the employees’ duty to perform work.

There is no provision or established court decision setting forth the rules regarding the length of the suspension period; however, as a general rule, this period should be as brief as possible, so as not to cause any impression that the employment relationship has been terminated by the employer. Suspension of an employee on full pay during a workplace investigation, which is also known as garden leave, is a commonly used alternative to a conventional suspension method described above. During the garden leave period, an employee can be banned from entering the workplace and performing any of his or her duties either partially or entirely while continuing to be paid his or her regular salary, along with fringe benefits. Garden leave is not a concept regulated under Turkish employment legislation, but rather developed in practice, mostly by the Turkish subsidiaries of multinational companies. An ideal approach for the implementation of garden leave would be to obtain the written consent of the employees either at the commencement of employment or during the investigation.

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

In the UK, suspension is not seen as a neutral act, so should not be a default approach at the start of an investigation. It may be appropriate if, for example, there is a risk to the health and safety of the employee in question (or any other employee), a risk that their continued presence in the business could prejudice the investigation, or risk of continued wrongdoing.

The employer should always check the individual’s employment contract to see if it contains the power to suspend. Suspension should generally always be with pay to avoid any breach of contract. It should also be regularly reviewed and kept to a minimum duration.

Employers should not suspend employees under investigation as a knee-jerk reaction to bare allegations. There must be at least some evidence to support the need for suspension (which may require a preliminary investigation before deciding to suspend). Alternatives to suspension should always be considered, such as a temporary transfer to a different area of work, if the employee agrees or it is otherwise permitted by their contract.

If authorities such as regulators or prosecutorial agencies are involved in the investigation, they may have an opinion about an employee’s suspension, particularly if they wish to conduct interviews. Consider whether or not to involve the authorities in the suspension discussions at an early stage.

ACAS have produced a guide to suspension during investigations (last updated Sept 2022) which gives further guidance on these issues.

Last updated on 15/09/2022

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United States

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

Yes. An employer may suspend the subject of an internal investigation with full pay pending the outcome of an investigation. However, this measure should be used sparingly, for example in cases where an employee has been accused of gross misconduct or where it is the only means of separating the alleged victim of harassment from the accused to prevent continued harassment. As an alternative means of separating the victim from the accused, an employer can consider interim measures such as a schedule change, transfer or leave of absence for the alleged victim with his or her consent (employers should take care not to take any action that could be perceived as retaliatory against the complainant – even if well-intentioned – including involuntarily transferring him or her or forcing a leave of absence).

Where an employer does determine that suspending the subject of an investigation is warranted while the company carries out its investigation, it should provide him or her with a written statement briefly outlining the reason for the suspension and the estimated date the employee will be advised of the investigation outcome and his or her final employment status.

Last updated on 15/09/2022

04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?

04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?

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Australia

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

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

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

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

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

Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

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

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

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

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

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

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

Last updated on 15/09/2022

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Germany

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

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

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

Last updated on 15/09/2022

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Hong Kong

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

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

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

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

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

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

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

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

There are no minimum qualifications or criteria that need to be met for a person to be appointed as an investigator. However, the investigator should be independent from all parties to the investigation and, where possible, the matters under investigation. Whether this person will be external or internal to the organisation will depend on the size of the organisation and whether impartiality can be achieved.

If there are terms of reference governing the investigation then it is essential that the investigator remains within the parameters of those terms of reference. For example, if the investigation is limited to a fact-finding exercise, the investigator should not go further and make any findings of misconduct or recommendations concerning disciplinary sanctions, etc.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

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

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

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

Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

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

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

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

Last updated on 15/09/2022

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Mexico

  • at Galicia

There are no specific legal requirements on who should conduct the workplace investigation; however, in practice, HR professionals or in-house counsel knowledgeable in employment law, human rights and gender perspectives should be involved. In certain cases, supervisors of the investigated employee may assist the investigation. 

Further, if the Protocol or policies have been implemented following applicable law and regulations, the contact person or internal committee for the attention of complaints should conduct the investigation. These individuals should have communication skills to promote dialogue and resolve conflicts.

In any case, a conflict check should be run at the beginning of the process to clear the contact person or committee of any allegations of bias.

Please note that it is possible to engage third parties in the investigation, such as forensic specialists or external legal counsel.

Last updated on 15/09/2022

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Netherlands

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

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

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

Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

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

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

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

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

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

Last updated on 15/09/2022

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Singapore

Singapore

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

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

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

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

Last updated on 15/09/2022

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South Korea

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

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

Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

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

  • the enquiry must involve a minimal number of employees;
  • only those employees with competencies on the investigated matters should be involved (normally human resources or compliance); and
  • employees conducting the investigation must be qualified and have the power and seniority to do so proficiently (although a formal qualification is not required).
Last updated on 15/09/2022

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Sweden

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

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

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

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

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

 

[1] David Rosenthal et al., Praxishandbuch für interne Untersuchungen und eDiscovery, Release 1.01, Zürich/Bern 2021, p. 18.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

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

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

Last updated on 15/09/2022

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Turkey

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

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

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

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

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

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

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

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

Last updated on 15/09/2022

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United States

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

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

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

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

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

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

Last updated on 15/09/2022

07. What data protection or other regulations apply when gathering physical evidence?

07. What data protection or other regulations apply when gathering physical evidence?

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Australia

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

As part of an investigation, the investigator may want to collect evidence such as camera footage from CCTV, swipe card records, computer records, telephone records or recordings and GPS tracking. There are state-based workplace surveillance laws that operate in each jurisdiction in Australia. The laws recognise that employers are justified in monitoring workplaces for proper purposes, but this is balanced against employees’ reasonable expectations of privacy.

The Privacy Act 1988 (Cth) (Privacy Act) also regulates how certain organisations handle personal information, sensitive personal information and employee records. The Privacy Act contains 13 privacy principles that regulate the collection and management of information. Employers should familiarise themselves with the privacy principles before conducting any investigation to ensure they are not in breach when gathering evidence.

Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

Here, the investigation “collides” with the right to privacy of the persons involved.

First, the rules and principles of the GDPR will apply if personal data is involved. Therefore, the employer will have to find a data-processing ground, which could be his or her legitimate interest or the fact that the investigation could lead to legal proceedings, etc. The data processing should also be limited to what is proportionate and the data subjects should be informed. Due to this obligation, it is arguable that the GDPR policy already provides the necessary information for the employees not to jeopardise the investigation. In any case, data subjects should not be able to use their right to access data to ascertain the preliminary findings of the investigation (which are confidential) or any confidential identities involved (eg, in the whistleblower procedure, the identity of the report should be protected at all times).

Also, the employer should follow the procedure of Collective Bargaining Agreement No. 81 on searching the e-mails or computer files and internet searches of employees. This CBA limits the purposes for searches and lays down a double-phase procedure that needs to be followed if private data is involved. Next to this, the employer should also take into account the case law of the European Court of Human Rights, which only allows e-mail and computer searches based on the following:

  • whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and the implementation of such measures;
  • the extent of the monitoring and the degree of intrusion into the employee’s privacy (including a distinction between the monitoring of the flow or the content of the communications);
  • whether the employer has provided legitimate reasons to justify monitoring of the communications and accessing of their actual content; and
  • whether it would have been possible to establish a monitoring system based on less intrusive measures, the consequences of the monitoring for the employee who is subject to it, and whether the employee had been provided with adequate safeguards.

Next, if the employer wants to use camera images, the rules of Collective Bargaining Agreement No. 68 should have been followed when installing cameras. If not, the images might have been collected illegally.

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

Generally, the basic principles set out by the GDPR and the Finnish Data Protection Act apply to data processing in connection with investigations, including evidence gathering: there must be a legal basis for processing, personal data may only be processed and stored when and for as long as necessary considering the purposes of processing, etc.

Additionally, if physical evidence concerns the electronic communications (such as emails and online chats) of an employee, gathering evidence is subject to certain restrictions based on Finnish ePrivacy and employee privacy laws. As a general rule, an employee’s electronic communications accounts, including those provided by the employer for work purposes, may not be accessed and electronic communications may not be searched or reviewed by the employer. In practice, the employer may access such electronic correspondence only in limited situations stipulated in the Act on Protection of Privacy in Working Life (759/2004), or by obtaining case-specific consent from the employee, which is typically not possible in internal investigations, particularly concerning the employee suspected of wrongdoing.

However, monitoring data flow strictly between the employee and the employer's information systems (eg, the employee saving data to USB sticks, using printers) is allowed under Finnish legislation, provided that employee emails, chats, etc, are not accessed and monitored. If documentation is unrelated to electronic communications, it also may be reviewed by the employer. Laptops, paper archives and other similar company documentation considered "physical evidence" may be investigated while gathering evidence on the condition that any private documentation, communications, pictures or other content of an employee are not accessed.

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

GDPR principles fully apply to data gathering, as well as case law protecting the right to respect one’s private life and the secret of correspondence.

Last updated on 15/09/2022

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Germany

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

When collecting data (in physical or digital form), the employer must ensure compliance with the data protection principles according to the General Data Protection Regulation (DSGVO) and the German Data Protection Act (BDSG). These principles include, among other things, that data collection must be carried out lawfully (principle of legality) and transparently (transparency principle) and must be comprehensively documented – specifically concerning the purpose of the workplace investigation – to be able to prove compliance with data protection.

The principle of legality states that data may only be collected on a legal basis (ie, there must either be a law authorising this or the employee must have consented to the collection of his data).

The transparency principle may constitute a special challenge during workplace investigations. Under the transparency principle, the employee must be generally informed about the collection of his data. This includes information on who processes the data, the purposes for which it is processed and whether the data is made available to third parties. However, there may be a risk of collusion, particularly when electronic data has to be reviewed, and thus the success of the investigation may be jeopardised if the relevant employee is comprehensively informed in advance. Accordingly, the employer should check, with the assistance of the data protection officer, whether the obligation to provide information may be dispensed with. This may be the case if providing the information would impair the assertion, exercise or defence of legal claims and the interests of the employer in not providing the information outweigh the interests of the employee. The respective circumstances and employer's considerations should be well documented in each case.

Regardless of whether the employee is informed about the investigation, to prevent data loss, the employee should be sent a so-called hold notice (ie, a prohibition to delete data). Additionally, to prevent automatic deletion, blocking mechanisms should also be implemented.

When gathering evidence by searching the employee's possessions or files, the employee's privacy rights also need to be observed (see question 8).

Last updated on 15/09/2022

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Hong Kong

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

If physical evidence contains data relating to an individual, from which the identity of the individual can be ascertained,[1] the data would constitute personal data under the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO). The PDPO sets out several data protection principles that the employer must comply with while processing personal data, including:[2]

  • personal data must be collected for a lawful purpose related to a function or activity of the employer and should not be excessive for this purpose. An internal investigation would be regarded as a lawful purpose;
  • personal data must be accurate and not kept longer than is necessary;
  • personal data must not be used for a purpose other than the internal investigation (or other purposes for which the data was collected) unless the employee consents to a new use or the new use falls within one of the exceptions provided in the PDPO;
  • personal data must be safeguarded against unauthorised or accidental access, processing or loss; and
  • the employee whose personal data has been collected has the right to request access to and correction of his or her personal data retained by the employer.

If an employer wants to gather evidence through employee monitoring, it should ensure that the act of monitoring complies with the data protection principles of the PDPO if the monitoring activity would amount to the collection of personal data. The Privacy Commissioner for Personal Data has issued guidelines to employers on the steps they can take in assessing whether employee monitoring is appropriate for their businesses.[3] As a general rule, employee monitoring should be conducted overtly. Further, those who may be affected should be notified in advance of the purposes the monitoring is intended to serve, the circumstances in which the system will be activated, what personal data (if any) will be collected and how the personal data will be used.

Covert surveillance of employees should not be adopted unless it is justified by relevant special circumstances. Employers should consider whether there is reason to believe that there is an unlawful activity taking place and the use of overt monitoring would likely prejudice the detection or collection of evidence.[4] Even if covert monitoring is justified, it should target only those areas in which an unlawful activity is likely to take place and be implemented for a limited duration of time.

 

[1] PDPO section 2.

[2] PDPO Schedule 1.

[3] PCPD, “Privacy Guidelines: Monitoring and Personal Data Privacy at Work” (April 2016) <https://www.pcpd.org.hk/english/data_privacy_law/code_of_practices/files/Monitoring_and_Personal_Data_Privacy_At_Work_revis_Eng.pdf>.

[4] Ibid at paragraph 2.3.3.

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

In India, the collection, disclosure, transfer and storage of personal data is regulated by the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (SPD Rules). Accordingly, if during an investigation any sensitive personal information (such as information relating to passwords; financial information such as a bank account, credit or debit card or other payment instrument details; a physical, physiological or mental health condition; sexual orientation; medical history; and biometric information) is collected, then the requirements under the SPD Rules will need to be complied with. This would include obtaining an individual’s “informed consent” before collecting any sensitive personal data if such information is intended to be collected or stored in an electronic format.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

The General Data Protection Regulation (GDPR) and Data Protection Acts 1988 to 2018 apply to the gathering of physical evidence insofar as the evidence gathers related to an identifiable individual. An employer must ensure that it has a legal basis under Article 6 GDPR to gather evidence from which an employee can be identified. In this context, employers often look to rely upon their legitimate interest in protecting their business and investigating potential wrongdoings. However, the pursuit of that legitimate interest must be necessary and proportionate, and the employer must be able to demonstrate that the achievement of the legitimate interest outweighs the countervailing risks to the rights and freedoms of employees. This assessment must be conducted and documented at the outset, and the investigation must be designed with privacy in mind to ensure there is no excessive intrusion on an employee’s data protection rights.

In addition to establishing a legal basis, the employer must comply with the principles of transparency, necessity and security set out in Article 5 of the GDPR. Firstly, transparency is a key principle under applicable data protection law that employers should consider in this context. Employers should ensure that they have an policies in place which clearly set out the employer’s powers to access email accounts and files etc. for the purpose of investigating employee wrongdoings. This should also be addressed in the employer’s privacy policy.  These policies must be provided to employees. Secondly, the employer must ensure that it minimises the physical evidence gathered, so that no more personal data is processed than is strictly necessary to achieve the purpose pursued by the investigation. Finally, it is important to ensure security of the evidence collected.  Employers should implement strong access limitation controls to ensure that access to information is limited on a strictly need-to-know basis.  This is particularly important for avoiding any risk to the reputation or other rights of the employee being investigated.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

Several legal and case-law principles may be relevant depending on the kind of investigation, including the following:

  • gathering evidence through employee “physical inspections and inspections on the employee’s belongings”: according to article 6 of the Workers’ Statute, these inspections are generally prohibited. They are permitted only where necessary to protect company assets (in such cases, corporal inspections may be carried out, subject to trade union agreement or National Labour Inspectorate authorisation, provided that, for example, they are carried out outside the workplace, that employees are selected with an automatic selection tool, and that the dignity and confidentiality of employees are protected);
  • gathering evidence through “audiovisual equipment and other instruments from which the possibility of remote control of employees’ activities arises”: according to article 4 of the Workers’ Statute, remote systems cannot be directly aimed at controlling employees’ activity, but can only be put in place for organisational, production, work safety or asset-protection needs (which may result in an indirect control over employees’ activity), and may be installed before a trade union agreement or with previous authorisation from the National Labour Inspectorate; however, these rules do not apply to working tools in an employee’s possession (see question 8) and, in any case, employees must be informed of the possibility of remote control;
  • gathering physical evidence through so-called defensive controls: according to the most recent case law, “defensive controls” can be defined as investigations carried out by the company where it has a suspicion of unlawful conduct by its employees. These controls can be carried out within certain limits and restrictions provided by case law – even in the absence of the guarantees provided for in article 4 of the Workers’ Statute.

In addition, when gathering physical evidence, there may be other provisions of law not strictly related to employment law that must be followed, for example, regarding privacy regulations (eg, minimisation of the use of personal data, collection of data only for specific purposes, and adoption of safety measures).

Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

When collecting physical evidence that contains personal information, the Personal Information Protection Law and its related guidelines apply. In addition, when collecting physical evidence that contains privacy information or an employee's photograph, care must be taken to ensure that the right to privacy and the image rights are not violated.

Last updated on 15/09/2022

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Mexico

  • at Galicia

Please note that under the FLL, all evidence that is not contrary to morality and the law is admissible in a labour process. The FLL does not expressly regulate the collection of evidence during a workplace investigation, or refer to data protection.

The Federal Law for the Protection of Personal Data Held by Private Persons regulates data protection. Therefore, the processing of personal data, including sensitive personal data, is subject to the employee’s consent. In the case of sensitive data, including information that may reveal racial origin or ethnicity, health conditions, genetic information, religious beliefs, union affiliation and sexual preference, the employee’s explicit consent is required.

The NCCP governs the chain of custody for evidence in connection with crime scenes, out of the scope of employment matters.

Last updated on 15/09/2022

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Netherlands

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

Dutch data protection rules are based on the EU Data Protection Directive. The employer has to notify the Dutch Data Protection Authority about the processing of personal data as part of an internal investigation. Given that the notification can be accessed publicly, it is recommended that the employer give a sufficiently high-level description of the case. In addition, the description should be sufficiently broad to include the entire investigation, and any future expansions of the scope of the investigation. Often companies make filings for all future internal investigations, without referring to specific matters.

The employer has to notify employees whose personal data is being processed about – among other things – the purposes of the investigation and any other relevant information. According to the Dutch Data Protection Act, this information obligation may only be suspended on restricted grounds, i.e. if the purpose of the investigation is the prevention, detection and prosecution of crimes and postponement is necessary for the interests of the investigation (e.g., because there ifgjs a risk of losing evidence, or collusion by individuals coordinating responses before being interviewed)). These exceptions on the duty to inform involved persons must be interpreted very restrictively. As soon as the reason for postponement is no longer applicable (e.g., because the evidence has been secured), the individuals need to be informed.

Dutch law does not require the consent of employees. Consent given by employees, however, also cannot compensate for a lack of legitimate purpose or unnecessary or disproportionate data processing, as the consent given by an employee to its employer is not considered to be voluntary.

Furthermore, internal company policies may contain specific data protection rules.

Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

When gathering evidence, the person being investigated is protected by the Constitution, the Freedom of Information Act and the Nigerian Data Protection Regulation (NDPR), among others.

The Constitution, particularly section 37, guarantees the right of a person to privacy.

The NDPR is the main data protection regulation in Nigeria. It regulates the processing and transfer of personal data.

Further, the Freedom of Information Act, 2011 prohibits the disclosure of information gathered during an investigation to the public.

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

Whenever employers process personal data in the course of an investigation, they need to comply with Regulation (EU) 2016/679 (the GDPR) and Law 58/2019, which implements the GDPR in Portugal (jointly the Data Protection Regulations). If the gathering of physical evidence includes the collection and processing of sensitive data (eg, related to the employee’s health or any other category outlined in article 9 of the GDPR), additional safety measures should be in place to safeguard the adequate and confidential nature of such information.

Last updated on 15/09/2022

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Singapore

Singapore

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

The employer may collect the personal data of an individual without the individual’s consent or from a source other than the individual, where it is necessary for any investigation according to section 17(1) read with paragraph 4 of Part 3 of the Third Schedule of the Personal Data Protection Act 2012 (PDPA). Under section 2(1) of the PDPA, “investigation” means an investigation relating to:

  • a breach of an agreement;
  • a contravention of any written law, or any rule of professional conduct or other requirement imposed by any regulatory authority in the exercise of its powers under any written law; or
  • a circumstance or conduct that may result in a remedy or relief being available under any law.

Under the Banking Act 1970, a bank and its officers cannot disclose customer information to third parties, subject to certain exceptions. An employer carrying out a workplace investigation does not fall within any of the exceptions.

Last updated on 15/09/2022

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South Korea

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

It may be difficult for a company to search and collect physical items that personally belong to the employee.

While the company may search and gather electronic data, such as emails or files stored in work laptops or company servers, there are requirements and restrictions under the Criminal Code, the Personal Information Protection Act (PIPA), and the Act on Promotion of Information and Communications Network Utilisation and Information Protection, etc (Network Act), among other laws. 

Article 316(2) of the Criminal Code states that accessing the contents of another person’s documents, pictures, special media records, etc, that are sealed or designated as secret using technical means may constitute the crime of accessing electronic records.

Under the PIPA, consent must be obtained from the information owner to collect or use personal information, or to provide such information to a third party. Consent must be separately obtained for sensitive information or unique identification information. There are strict requirements as to the format and contents of the consent forms under the PIPA.

The Network Act prohibits accessing an information and communications network without rightful authority or any intrusion that goes beyond the permitted authority for access. Although this may not be an issue if a company directly manages the email accounts at issue, if an employee’s email account is protected by a password or through other means, accessing emails from that account without obtaining the employee’s consent could constitute unlawful intrusion under the Network Act as well as under the Criminal Code as discussed above.

Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

The General Data Protection Regulation and the Spanish Data Protection Law apply when gathering any type of evidence, including physical evidence. This means that companies may only process personal data when they have lawful grounds to do so and within the limits set forth for special categories of personal data (health, union affiliation, criminal records, etc.).

The Spanish Statute of Workers specifically states that employees and their possessions may be registered when it is necessary to protect the companies’ property (or the property of other co-workers). This registration must:

  • be conducted in the workplace and during working hours;
  • respect the employee’s privacy and dignity; and
  • be performed in front of an employee representative or, if not possible, in the presence of another employee of the company.
Last updated on 15/09/2022

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Sweden

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

To the extent the gathering of physical evidence includes the processing of personal data, please see question 1.

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

The Swiss Federal Act on Data Protection applies to the gathering of evidence, in particular such collection must be lawful, transparent, reasonable and in good faith, and data security must be preserved.[1]

It can be derived from the duty to disclose and hand over benefits received and work produced (article 321b, Swiss Code of Obligations) as they belong to the employer.[2] The employer is, therefore, generally entitled to collect and process data connected with the end product of any work completely by an employee and associated with their business. However, it is prohibited by the Swiss Criminal Code to open a sealed document or consignment to gain knowledge of its contents without being authorised to do so (article 179 et seq, Swiss Criminal Code). Anyone who disseminates or makes use of information of which he or she has obtained knowledge by opening a sealed document or mailing not intended for him or her may become criminally liable (article 179 paragraph 1, Swiss Criminal Code).

It is advisable to state in internal regulations that the workplace might be searched as part of an internal investigation and in compliance with all applicable data protection rules if this is necessary as part of the investigation.

 

[1] Simona Wantz/Sara Licci, Arbeitsvertragliche Rechte und Pflichten bei internen Untersuchungen, in: Jusletter 18 February 2019, N 52.

[2] Claudia Fritsche, Interne Untersuchungen in der Schweiz, Ein Handbuch für Unternehmen mit besonderem Fokus auf Finanzinstitute, p. 148.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

The basic premise is that all evidence is admissible unless it violates the law of admissibility and production of evidence, which may vary depending on the jurisdiction. In a criminal court, for example, evidence gathered in violation of the fruit of the poisonous tree doctrine would be typically inadmissible, yet in a civil court, this doctrine would not be an exclusionary rule.

The Personal Data Protection Act, BE 2562 (2019) (PDPA), which is the main data protection law in Thailand, applies when collecting, using, and disclosing pieces of evidence containing the personal data of employees. If the investigation requires sensitive information of the employee under investigation, for example, race, ethnic origin, political opinion, religious or philosophical beliefs, sexual behavior, criminal records, health data, disability, genetic data and biometric data, consent from the employee should be obtained.

Last updated on 15/09/2022

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Turkey

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

The conditions applicable to gathering physical evidence mainly stem from the precedents of the Turkish Constitutional Court about employment disputes and the rules set forth under Turkish Law No. 6698 on the Protection of Personal Data (DPL). It is generally accepted that employers can gather physical evidence for certain legitimate purposes, such as disciplinary investigations, the prevention of bribery and corruption, fraud or theft, money laundering, and employee performance monitoring and compliance. In doing so, employers must, however, comply with the fundamental principles of the Turkish Constitutional Court as briefly described below:

  • The grounds for the gathering of evidence must be legitimate. The definition of the legitimate interests of the employer may change depending on the characteristics of the business, workplace and employee job description, as well as the specific circumstances of the case. Therefore, it is advisable to carry out a balancing test between the legitimate interest the employer is seeking to protect and the employee’s interest in the protection of their privacy.
  • The collection activities must be proportionate, in the sense that the measure implemented by the employer must be appropriate and reasonably necessary to achieve the legitimate purpose, without infringing upon the fundamental rights and freedoms of the employees. For instance, e-mail monitoring to collect evidence may not be proportionate if it is determined that e-mails that are not related to the incident subject to investigation are also accessed. To achieve this, certain keywords or algorithms can be used while monitoring e-mails during a disciplinary investigation.
  • The collection process must be necessary to achieve the purpose. In other words, the collection of physical evidence must only be carried out to the extent there are no other measures allowing the employer to achieve its purpose, such as witness testimony, workplace records, or examining the results of projects. If the purpose can be achieved through less invasive means, the collection of physical evidence may not comply with the principles established by the decisions of the Constitutional Court.

Separately, depending on the type of physical evidence collected, the collection process may lead to the processing of the concerned employees’ personal data. Under the DPL, personal data collected in Turkey can only be processed if the explicit consent of the data subject is obtained; or the data is processed based on one of the exceptions to consent provided by the law. To the extent the data processing can be deemed to be based on the pursuit of a legitimate interest of the employer, it should also meet the following conditions:

  • it should be the most convenient and efficient method to identify any employee wrongdoing to protect the legitimate interests of the company; and
  • the data processing should not harm the fundamental rights and freedoms of the employees.

The employer should in any case comply with the obligation to inform employees before the processing of their data, through a privacy notice containing mandatory information required by the DPL.

In addition, as a general principle, the evidence-gathering process should always be conducted based on the assumption that the internal investigation can lead to litigation. Any evidence that will be used in litigation needs to have been gathered in compliance with the law. In both criminal and civil litigation, the courts will review each piece of evidence to confirm whether it was gathered through lawful methods and disregard any evidence that fails to comply with due process.

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

Most forms of workplace surveillance involve the processing of personal data that is regulated by the UK GDPR and DPA 2018. The UK GDPR requires that personal data must be processed lawfully, fairly and in a transparent manner; it also must be adequate, relevant and limited to what is necessary concerning the purposes for which it is processed.

Employers should ensure that they have undertaken a data protection impact assessment (DPIA) to document the lawful basis for processing data, and informed employees that their files may be searched before proceeding. They should also ideally have a clear policy on the use of electronic communications systems, detailing when, how and for what purpose they may be monitored by the employer.

The IPA 2016 makes it unlawful in certain circumstances to intercept a communication (such as one on an employer’s telephone or computer network) in the course of its transmission in the UK. The IPA Regs 2018 set out the circumstances where, in a business context, such interception will be lawful. These include monitoring or recording communications without consent to: establish the existence of facts; ascertain compliance with the regulatory or self-regulatory practices or procedures relevant to the business; ascertain or demonstrate standards which are or ought to be achieved by persons using the system; and prevent or detect crime.

Covert surveillance can lead to a breach of an employee's right to privacy under the HRA 1998. The employer will need to consider if covert surveillance is proportionate, which will depend on the facts of each case. Employers should be careful not to use the investigation as an excuse to undertake a "fishing expedition", and should avoid gathering material that is obviously personal, such as private messages and diary entries (see question 8).

Last updated on 15/09/2022

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United States

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

Documents and instruments that set out a company’s policies (eg, employee handbooks, code of conduct or other written guidelines) often contain provisions regarding employee data and document collection, workplace searches, communication monitoring, privacy, and confidentiality. As discussed below, state and federal constitutional, statutory and common law – and in some cases foreign data privacy regimes – may provide additional protections to protect employees from an unwarranted or unreasonable invasion of privacy during an internal investigation.

Last updated on 15/09/2022

08. Can the employer search employees’ possessions or files as part of an investigation?

08. Can the employer search employees’ possessions or files as part of an investigation?

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Australia

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

The starting position is that there is no general right for an employer to search an employee’s possessions. However, an employer may be able to undertake a search in circumstances where:

  • the employee consents to the search;
  • there is a “right to search” contained in a contract, policy, procedure or industrial instrument; or
  • the request to search constitutes a lawful and reasonable direction.

If an employee agrees to a search of their possessions, this consent should be confirmed in writing. If the employee does not consent then the employer can issue a direction to the employee. If the direction is lawful and reasonable, and the employee does not comply, then disciplinary action may be considered.

Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

The employer is, in principle, not entitled to search the employee’s private possessions, except with the explicit consent of the employee. Digital files on the computer or laptop of an employee can be searched under the rules of CBA No. 81 (see question 7) and other privacy rules.  

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

Only the police can search employees' possessions (assuming that the prerequisites outlined in the legislation are met).

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

In internal investigations, the fundamental rights and freedoms of employees are at stake,  including the right to privacy, respect for the privacy of home life and correspondence, freedom of expression, and the obligation of loyalty in searching for evidence.

In principle, work emails and files can be reviewed, even without the employee's consent, prior knowledge or warning. This includes: work email accounts; files stored on a work computer or a USB key connected to a work computer; and SMS messages and files stored on a work mobile phone and documents stored in the workplace unless they are labelled as “personal”. On the other hand, it is not permissible for an employer (or an investigator) to review “personal” emails and files, such as documents or emails identified as “personal” by the employee, or personal email accounts (Gmail, Yahoo, etc), even if accessed from a work computer.

There are certain exceptions to the above principle. An employer is allowed to check “personal” emails or data in any of the following cases:

  • if the employee is present during the review;
  • if the employee is absent, but was duly notified and invited to be present;
  • if there is a particularly serious “specific risk or event”;
  • if the review is authorised by a judge (this means having to prove a legitimate reason justifying not informing the employee).

When documents or emails are not marked as “personal” but contain information of a personal nature, the employer may open and review the data but may not use such documents or emails to justify applying disciplinary measures to the employee or use such documents or emails as evidence in court if they indeed relate to the employee’s private life.

Special attention must be given to employee representatives who must be entirely free to carry out their duties.

Last updated on 15/09/2022

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Germany

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

Files and documents that are purely business-related – whether in physical or digital form – may, in principle, be inspected by the employer without restriction. The employee has no right to refuse inspection.

When searching business laptops, computers, phones and e-mail accounts, a distinction must be made as to whether private use is permitted (or at least tolerated) or not: if the employee is allowed to use the items exclusively for business purposes, the employer may monitor and control them. If private use is permitted, the employee's right to privacy must be observed for private files, as must the protection of the secrecy of correspondence. Accordingly, the employer must avoid accessing private documents, files and e-mails. However, a review of private documents, files and e-mails may be permissible in the event of particularly serious violations if the employer's interest in the review outweighs the employee's interest in safeguarding his right to privacy. Generally, employers should allow private use of electronic devices only if employees have previously consented to the terms of use (including searches in certain cases).

A search of the employee's workplace by the employer is, in principle, permissible. However, a search of personal items (eg, bags, clothes, personal mobile phone) is generally only permissible with the employee's consent. Similarly to the review of digital personal data, a search of personal items may be permitted, however, in the event of particularly serious violations if the employer's interest in the search outweighs the employee's right to privacy.

Last updated on 15/09/2022

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Hong Kong

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

As part of an investigation, an employer may search objects or files that are the company’s property (eg, electronic devices given by the employer for business purposes and emails or messages stored on the company’s server) without prior notice and the employee’s consent is not needed. The employer, however, has no right to search an employee’s possessions (eg, a private smartphone) without the employee’s consent.

To avoid arguments as to who a particular object belongs to, employers may specify in internal policies what is to be regarded as corporate assets and could be subject to a search in a workplace investigation.

Concerning an employee’s possessions, even if he or she consents to a search, it is good practice for the employer to conduct the search in the presence of the employee or an independent third party who can act as a witness to the search. If the employer suspects that a criminal offence has been committed and that a search of the employee’s possessions would reveal evidence, the employer should consider reporting its suspicion to the police, as they have wider legal powers to search.[1]

 

[1] Usually upon execution of a warrant.

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

Yes, an employer can search its employees’ official possessions and files as part of an investigation. It may be difficult, however, to seize personal assets or possessions of an employee (such as the individual’s mobile phone or personal laptop).

Employers should expressly create policies that address key issues associated with employee surveillance, forensic searches and investigations, such as:

  • whether or not the official assets and infrastructure of the company can be used for personal purposes by employees;
  • the organisation's right to monitor, surveil or search any authorised or unauthorised use of its corporate assets; and
  • that the employee should not have any expectation of privacy when using the companies’ resources, etc.

Any forensic review of digital data must be carried out with due regard to Indian rules of evidence to avoid situations where such evidence becomes unreliable in a future legal claim or dispute.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

An employer’s right to conduct searches will generally depend on whether the employee’s contract of employment allows such searches or whether such searches are otherwise provided for in the workplace policies that an employer has in place.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

In light of the legal and case-law principles as outlined above:

  • see question 7 regarding employee “physical inspections and inspections on the employee’s belongings”;
  • regarding “audiovisual equipment and other instruments from which the possibility of remote control of employees’ activities also arises”, article 4 of the Workers’ Statute provides for:
    • the prohibition of the use of audiovisual equipment and instruments of “direct” remote control (ie, whose sole purpose is to verify the manner, quality and quantity of working performance (eg, a camera installed in an office to film employees’ working activities, without any other purpose));
    • the possibility of carrying out controls through audiovisual equipment and “indirect” remote instruments (ie, instruments that serve different needs (organisational, production, work safety or company assets’ protection), but which indirectly monitor working activities (eg, a camera installed in a warehouse to prevent theft, but which indirectly monitors the activity of warehouse workers), which may only be installed with a trade union agreement (or National Labour Inspectorate authorisation);
    • the possibility of carrying out checks using working tools in the employee’s possession (e.g., PCs, tablets, mobile phones, e-mail), which may be carried out even in the absence of any trade union agreement, provided that the employee is given adequate information on how to use the tools and how checks may be carried out on their use (according to privacy law strictly related to the employment relationship).

Furthermore, based on case law, the employer can carry out so-called defensive controls (ie, actions carried out in the absence of the guarantees provided for in article 4, to protect the company and its assets from any unlawful conduct by employees). These “defensive controls” can be carried out if:

  • they are intended to determine unlawful behaviour by the employee (ie, not simply to verify his or her working performance);
  • there is a “well-founded suspicion” that an offence has been committed;
  • they take place after the conduct complained of has been committed; and
  • adequate precautions are nevertheless put in place to guarantee a proper balancing between the need to protect company assets and safeguarding the dignity and privacy of the employee.
Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

Since inspections of personal belongings may potentially undermine employees' fundamental human rights, they would not become lawful simply because they are conducted under employment regulations.

Inspections of personal belongings must be conducted uniformly among employees in the workplace based on reasonable grounds, in a generally reasonable manner and to a generally reasonable degree, and based on the work rules, etc.

When inspections of personal belongings are conducted under employment regulations, etc, employees must agree to the inspection except in special circumstances, such as the method or degree of the inspection being unreasonable.

On the other hand, an investigation of information stored on a company network system may constitute an infringement of the right to privacy. If there is a provision in the employment regulations regarding the use of the internet and monitoring, it is possible to investigate under such a provision. A Japanese court case on the illegality of reading e-mails in the absence of a monitoring provision stated that private use of e-mails also carries a certain right to privacy, but also stated that "considering the fact that the system is maintained and managed by the company, the protection of the employee's privacy can only be expected within a reasonable range according to the specific circumstances of the system," and that the act of reading e-mails was not illegal because the extent of private use of e-mails was beyond the limit, which was outside the reasonable range of socially accepted ideas. The court also ruled that the monitoring of the employee's abusive private use of e-mail, which was discovered in the course of an investigation of slanderous e-mails within the company, was not illegal because even if the monitoring was conducted without notice, there was suspicion of a violation of the duty of devotion to duty and corporate order. The court also stated that the investigation was necessary and that the scope of the investigation did not exceed its limit.

Last updated on 15/09/2022

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Mexico

  • at Galicia

In general, an employee’s possessions or files are protected by article 16 of the Mexican Political Constitution (Constitution), which provides that no one can be disturbed in their person, family, domicile, papers or possessions, except through a written order from a competent authority (due process).  Further, private communications are inviolable under the Constitution. The law will penalise any act taken against the privacy of the same, except when they are contributed voluntarily by any of the individuals who participated in them and as long as they contain information related to the commission of a crime.

Only the federal judicial authority may authorise the intervention of any private communication, upon the justified request of the competent authority. The federal judicial authority shall not grant these authorisations in matters of an electoral, fiscal, commercial, civil, labour or administrative nature.

For an employer to be able to validly search an employee’s possessions and files, they must be considered “work tools” granted by the employer for the performance of the job. Work tools may include a company car, laptop or personal computer, mobile phone, a company’s email account and correspondence, internet, private office, co-working desks and any other tool or equipment related to the employee’s job position or duties. In this way, such possessions and files may be considered the property of the employer, therefore authorising the latter to search on them at any time.

Please note that the abovementioned should be expressly established in the individual employment agreement or the company’s policies, including Internal Work Rules.  Employees should acknowledge they have no expectation of privacy when using work tools, and that any search by the employer will not be considered a violation of the employee’s privacy rights.

Moreover, the employer can implement a specific policy for the use of IT Systems and an e-mail account, through which employees authorise the employer to access or monitor all electronic files and information kept in the employee’s laptop and email account.

Last updated on 15/09/2022

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Netherlands

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

When conducting an internal investigation (which must have a legitimate purpose), the employer must act in accordance with the principles of proportionality and subsidiarity. In line with these principles, the means of collecting and processing personal data during an internal investigation as well as the data that is searched, collected or processed, should be adequate, relevant and not excessive given the purposes for which the data is being collected or subsequently processed. These principles can be complied with by, for example, using specific search terms when searching electronic data, limiting the investigation’s scope (subject matter, period, geographic locations) and, in principle, excluding an employee's private data.

The employer is, in principle, allowed to access documents, emails and internet connection history saved on computers that were provided to the employees to perform their duties, provided the requirements of proportionality and subsidiarity are taken into account. In other words, reading the employee's emails or searching electronic devices provided by the employer must serve a legitimate purpose (e.g. tracing suspected irregularities or abuse) and the manner of review or collecting and processing the data contained in such emails should be in accordance with the principles of proportionality and subsidiarity.

The employer can ask the employee to hand over an employee's USB stick for an investigation. Depending on company policies and employment agreements (individual or collective), an employee is, in principle, not obliged to comply with such a request. A refusal from an employee, when there is a strong indication that this USB stick contains information that is relevant to an investigation into possible irregularities, may be to the disadvantage of an employee, for example in a dismissal case.

The following factors, which derive from the Bărbulescu judgment of the European Court of Human Rights, are relevant to the question of whether an employee's e-mail or internet use can be monitored:

  • whether the employee has been informed in advance of (the nature of) the possible monitoring of correspondence and other communications by the employer;
  • the extent of the monitoring and the seriousness of the intrusion into the employee's privacy;
  • whether the employer has put forward legitimate grounds for justifying the monitoring;
  • whether a monitoring system using less intrusive methods and measures would have been possible;
  • the consequences of the monitoring for the employee; and
  • whether the employee has been afforded adequate safeguards, in particular in the case of intrusive forms of monitoring.

These requirements can sometimes create a barrier for employers, as seen in a ruling by the District Court Midden-Nederland (16 December 2021, ECLI:NL:RBMNE:2021:6071) in which the employer had used information obtained from the employee's e-mail as the basis for a request for termination of the employment contract. In the proceedings, the employee argued that his employer did not have the authority to search his e-mail.

According to the District Court, it was unclear whether the employer had complied with the requirements of Bărbulescu regarding searching the employee's e-mail. The regulations submitted by the employer only described the processing of data flows within the organisation in general. Therefore, the District Court found that the employer did not have a (sufficient) e-mail and internet protocol and the employee was not properly informed that his employer could monitor him. In addition, according to the District Court, it was unclear what exactly prompted the employer to search the employee's e-mail, as the employer did not provide any insight into the nature and content of the investigation. As a result, the District Court was unable to determine whether the employer had legitimate grounds to search the employee's e-mail. On this basis, the Subdistrict Court disregarded the (possibly) illegally obtained evidence and ruled against the termination request by the employer.

Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Yes, an employer can search the possessions or files of an employee as part of an investigation where the employee’s contract or handbook authorises such a search and there is a reasonable suspicion of wrongdoing.

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

The employer is allowed to search an employee’s possessions or files, provided that they are work instruments or of a professional nature.

When performing these searches, employers should consider the specific provisions of the Data Protection Regulations as well as Resolution No. 1638/2013 of the Portuguese Data Protection Authority (CNPD), which contains rules on monitoring phone calls, e-mail and internet usage by employees. The CNPD understands that for the employer to access the employees’ professional data (e-mails, documents and other information stored on electronic devices), the latter should be present during the monitoring, to identify any information of a personal nature that should not be accessed by the employer (the employer must comply with these directions and should not access that email). In addition, review of the data should respect specific protocols to avoid potential access to personal data (eg, review of subject, recipients, data flow and type of files attached).

Body searches or the seizure of personal belongings or documents belonging to the employee are not permitted within the scope of a disciplinary procedure.

Last updated on 15/09/2022

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Singapore

Singapore

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

The employer is not allowed to search employees’ personal possessions or files as part of an investigation without the employee’s consent. However, such consent may be explicitly provided for in the terms of employment (as may be contained in the employment contract, employee handbook or the employer’s internal policies and procedures in dealing with the investigations, etc). The employer may, however, search the employees’ company email accounts and files if these are stored on the company’s internal systems or devices.

Last updated on 15/09/2022

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South Korea

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

As discussed in question 7, it may be difficult for a company to search an employee’s personal possessions. The company may search and gather electronic data stored in work laptops or company servers, subject to legal requirements and restrictions (eg, obtaining consent). 

The PIPA provides specific guidance on the requirements for obtaining consent. Under the PIPA, to collect or use an individual’s personal information, the information holder must be informed of and consent to:

  • the purpose of the collection or use;
  • the personal information that will be collected;
  • the period of retention and use; and
  • his or her right to refuse to provide consent and any disadvantages that may result from such refusal.

There are separate requirements for obtaining consent to provide an individual’s personal information to a third party. Also, consent must be obtained separately for the collection, use or provision of sensitive or unique identification information.

Under limited circumstances, personal information may be collected, used, or provided to third parties without obtaining the consent of the information holder. For instance, a company may collect and use personal information without obtaining consent where obtaining the information is necessary to achieve the company’s “legitimate interests”, which clearly exceed the information holder’s right to his or her personal information, and the collection and use are carried out within reasonable bounds. The term “legitimate interests” in this context is generally understood as a concept similar to “justifiable act” under the Criminal Code. The Korean Supreme Court has held that under exceptional circumstances such as the following, the company’s collection and review of employee data may constitute a “justifiable act” under the Criminal Code:

  1. the company had specific and reasonable suspicion that the employee had committed a crime and the company had an urgent need to verify the facts;
  2. the scope of the company’s review was limited to the suspected crime through the use of keywords, etc;
  3. the employee had signed an agreement stating that he or she would not use work computers in an unauthorised manner and that all work products would belong to the company; and
  4. the company’s review uncovered materials that could be used to verify whether the employee committed the alleged crime.
Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

Please see question 7.

Last updated on 15/09/2022

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Sweden

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

An employer can search an employee’s personal possessions (eg, handbag, pockets and locker) if the employer has a legitimate interest in a search. This could, for example, include a reasonable suspicion of theft of employer property. Furthermore, an employer may search, but not continually monitor, an employee’s computer and email provided that it is in accordance with GDPR requirements. For the processing to be lawful under the GDPR, the employer has to establish a purpose and a legal basis for the processing of personal data. Furthermore, data subjects must have received information on the legal basis for and purpose of the processing of personal data beforehand. If the data subjects have not received such information, the employer’s right to process their data is limited. However, if the employer has reasonable grounds to believe that trade secrets or similar has been copied and stolen, no such requirements would typically apply.

Investigations into an employee's possessions may, under certain circumstances, also be carried out by the Swedish authorities.

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

The basic rule is that the employer may not search private data during internal investigations.

If there is a strong suspicion of criminal conduct on the part of the employee and a sufficiently strong justification exists, a search of private data may be justified.[1] The factual connection with the employment relationship is given, for example, in the case of a criminal act committed during working hours or using workplace infrastructure.[2]

 

[1] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168.

[2] Claudia Fritsche, Interne Untersuchungen in der Schweiz: Ein Handbuch für regulierte Finanzinstitute und andere Unternehmen, Zürich/St. Gallen 2013, p. 168 et seq.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

Electronic information created during employment would generally be owned by the employer and would be the employer’s assets. If an employee is given a computer or laptop to use for work, the employer has the right to log into that device and take any data that is stored therein, provided that the data does not contain sensitive information of that employee and PDPA requirements are met.

To avoid any potential issues regarding physical data such as documents on the employee’s desk, it is advisable to search those areas with the subject employee to show good faith. In practice, the employee normally agrees to search those areas with the employer, or allows the employer to search alone.

Last updated on 15/09/2022

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Turkey

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

There is no explicit answer to this question. However, it is important to make a distinction between employees’ possessions and files that are strictly personal and employees’ possessions and files that are found on devices or files provided for company use. For the first category, the employer does not have the right to search employees’ possessions and files. For the latter category though, justifications need to be established, by observing the requirements explained in question 7. Furthermore, the employers must also ensure that employees are fully and explicitly informed in advance of the monitoring operations, either through a provision included in the employment agreement, or in a separate notice or employee policy, the receipt of which should be duly acknowledged by the employee.

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

It may sometimes be difficult to draw a clear distinction between the property of the employer and employees’ personal property, both physical and electronic, particularly where employees are increasingly working from home. Employers should ideally have a clear policy to delineate what is the employer’s property.

Employees typically have a reasonable expectation of privacy at work, although how far this extends will depend on the circumstances of each case and the employer’s policies.

When it comes to employees’ personal possessions, a search should only be conducted in exceptional circumstances where there is a clear, legitimate justification. The employer should always consider whether it is possible to establish the relevant facts through the collection of other evidence. Even if the employee’s contract specifies that it is permitted, employers would usually require explicit employee consent for the search to be lawful. The employee should be invited to be present during the search; if this is not feasible, another independent third party (such as a manager) should be present.  

If the employee refuses to consent to a search of their personal possessions, their refusal should not be used to assume guilt; the investigator should explore why the employee has refused and seek to resolve their concerns if possible.

If the employer believes that a criminal offence has been committed it should consider involving the police, since they have wider powers to search individuals and their possessions. 

Last updated on 15/09/2022

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United States

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

As there is no unified data protection regime, privacy protections stem from a patchwork of federal and state privacy laws which impose limits on the extent to which an employer can collect information from its employees in connection with an internal investigation. Whether specific conduct violates an employee’s rights is a very fact-specific inquiry requiring the application of relevant state laws and a regulatory regime. 

In most circumstances, an employer is free to conduct searches of its workplace and computer systems in the course of investigating potential wrongdoing. Such searches are generally not protected by personal privacy laws because workspaces, computer systems and company-issued electronic devices are often considered company property. Many companies explicitly address this in written corporate policies and employment agreements. Employees who use their own electronic devices for work should be aware that work-related data stored on those devices is generally considered to belong to the employer (as a matter of best practice, employers should generally prohibit or at least advise employees against using personal devices for work and to maintain separate work devices, where possible).

These broad investigatory powers notwithstanding, the ability of an employer to conduct searches in furtherance of an internal investigation is not unlimited. For example, if an employer seeks to obtain or review work-related data from an employee’s personal device, the employer must be careful to exclude any personal data. Certain states also prohibit an employer from requiring an employee to disclose passwords or other credentials to his or her personal email and social networking accounts, but permit an employer to require employees to share the content of personal online accounts as necessary during an interview while investigating employee misconduct.

Last updated on 15/09/2022

09. What additional considerations apply when the investigation involves whistleblowing?

09. What additional considerations apply when the investigation involves whistleblowing?

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Australia

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

A complaint will be a whistleblowing complaint where a complainant has reasonable grounds to suspect that the information they are disclosing about the organisation concerns misconduct or an improper state of affairs or circumstances. The information can be about the organisation or an officer or employee of the organisation engaging in conduct that:

  • breaches the Corporations Act 2001 (Cth);
  • breaches other financial sector laws;
  • breaches any other law punishable by 12 months’ imprisonment; or
  • represents a danger to the public or the financial system.

Since 2020, all public companies, large proprietary companies and trustees of registrable superannuation entities in Australia are required to have a whistleblower policy. Employers conducting an investigation will need to follow the processes outlined in their policy.

One of the key differences when conducting an investigation that involves whistleblowing is identity protection and the ability of the whistleblower to disclose anonymously and remain anonymous.

Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

If the investigation is based on a whistleblower report that falls under the scope of the upcoming rules, the investigators are bound by a strict duty of confidentiality, especially regarding the identity of the report. The rules also provide some procedural deadlines for feeding back to the reporter. Within seven days of receiving the report through an internal reporting channel, the reporting manager needs to send a receipt to the whistleblower. From that moment, the reporting manager has three months to investigate the report and give feedback and an adequate follow-up to the report. Next, the rules offer strong protection against any retaliatory measures the reporter may experience. Regardless, these rules are mostly intended to offer the necessary protection for whistleblowers and to ensure that companies take necessary investigative steps following a report, but they do not include much information about the actual procedure of the investigation besides certain deadlines, nor do they deal with other employees involved (or under investigation).

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

In respect of data protection, the processing of personal data in whistleblowing systems is considered by the Finnish Data Protection Ombudsman (DPO) as requiring a data protection impact assessment (DPIA).

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

Evidence obtained in the context of an investigation must specify who provided it and the date it was provided. No retaliatory measures may be taken against the whistleblower for the act of whistleblowing.

In certain cases, the whistleblower report must be forwarded to the judicial authorities (eg, when there is an obligation to assist persons in imminent danger, for serious offences or a disclosure that a vulnerable person is in danger (ie, minors under 15 or a person who is unable to protect themselves)).

Last updated on 15/09/2022

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Germany

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

To date, Germany has not yet implemented the EU Whistleblowing Directive into national law. In April 2022, the Federal Ministry of Justice presented a new draft bill for the German Whistleblower Protection Act and the legislative process is ongoing.

The draft bill of the Whistleblower Protection Act provides that companies with at least 50 employees must establish internal reporting channels as further set out in the law. Among other things, the confidentiality of the whistleblower as well as of the individuals affected by the report must be protected.

Further, whistleblowers must be protected from negative consequences that may arise from their reports. If the employment of a whistleblower were terminated or if the whistleblower were to be denied promotion after reporting a violation, the employer would have to prove that this was not related to the whistleblowing but was based on justified reasons.

Employers should have already familiarised themselves with the expected provisions of the new law.

Last updated on 15/09/2022

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Hong Kong

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

Hong Kong does not have a comprehensive legislative framework relating to whistleblowing. Therefore, in general, employers are free to establish whistleblowing policies and procedures and confer such protections on whistleblowers as they see fit. That said, companies listed on the Main Board of the SEHK are expected to establish a whistleblowing policy and system for employees to voice concerns anonymously about possible improprieties in the companies’ affairs. If a listed issuer deviates from this practice, it must explain the deviation.[1]

When an investigation involves whistleblowing, the employer needs to comply with the relevant policy and system and provide the whistleblower with such protections as stated in the policy. The employer should not ignore a complaint simply because it was made anonymously, and should ascertain the substance of the complaint to decide whether a full-blown investigation is warranted.

In addition, the employer should seek to establish a secure communication channel with the whistleblower to gather more information about the complaint or misconduct while maintaining the confidentiality of his or her identity. If the complaint is serious, the employer may consider referring the complaint to a law enforcement agency or regulator as they would be better placed in protecting the anonymity of the whistleblower while proceeding with the investigation. That said, employers generally have no obligation to report internal wrongdoing to any external body (please see question 25 for exceptions). The employer may assess whether it is appropriate to do so on a case-by-case basis.

 

[1] The Corporate Governance Code, Appendix 14 of the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong Limited

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

Indian labour legislation does not stipulate any additional considerations or requirements concerning whistleblower complaints in private organisations and these are only available if there are complaints against public servants. Further, under the Companies Act, 2013, certain companies are required to establish a “vigil mechanism” for directors and employees to report genuine concerns regarding the affairs of the company. The vigil mechanism should provide adequate safeguards against the victimisation of persons using it.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

The Protected Disclosures Act 2014, as amended, contains an obligation that an employer must not disclose any information that might identify the whistleblower beyond those authorised to receive or follow up on the disclosure.

The 2014 Act does provide for certain exceptions to this requirement, for example, where the recipient reasonably believes that disclosing any such information is necessary for: the effective investigation of the relevant wrongdoing; the prevention of serious risk to the security of the state, public health, public safety or the environment; or the prevention of crime or prosecution of a criminal offence.

To rely on any of the exceptions, the whistleblower must be informed before their identity is disclosed, unless such information would jeopardise the related investigations or judicial proceedings.

The 2014 Act also provides that it is an offence to breach the duty of confidentiality regarding the identity of whistleblowers. A person who commits such an offence is liable: on summary conviction, to a class A fine (a fine not exceeding €5,000) or to imprisonment for a term not exceeding 12 months, or both; or on conviction on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding two years, or both.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

The regulations on whistleblowing in the private sector are outlined in article 6 of Italian Legislative Decree No. 231 of 2001 (as amended by Law No. 179 of 2017), which state that the models of organisation must provide for one or more channels that allow persons in positions of representation, administration and management of the entity (and persons subject to their direction or supervision) to report unlawful conduct according to Italian Legislative Decree No. 231 of 2001 and violations of the entity’s organisational and management rules.

These channels must guarantee the confidentiality of the identity of the reporting party. Indeed, the employee who cooperates with an audit must be protected against any retaliatory action directly or indirectly linked to the report (ie, as far as is possible, anonymity should be guaranteed and there should be disciplinary measures for those who breach the measures that protect the employee).

In addition, Italy is implementing Directive (EU) No. 1937 of 2019, which provides for the adoption of new standards of protection for whistleblowers.

This Directive states that:

  • its provisions apply to all private legal entities (and legal entities in the public sector):
      • with 50 or more employees that must have an internal whistleblowing system;
      • operating in the financial services sector or vulnerable to money laundering or terrorist financing;
  • whistleblowers’ reporting may take place through:
      • the company’s internal reporting channels and internal reporting procedures; or
      • external reporting channels and external reporting procedures established by the member states’ competent authorities; or
      •  in certain circumstances, public disclosure; and
  • whistleblowing systems should provide:
    • ways of protecting collected data according to the GDPR, as well as tight deadlines for communication with whistleblowers; and
    • an integrated system of protection of whistleblowers against any retaliatory action directly or indirectly linked to their reports or declarations.
Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

See question 4 regarding amendments to the Whistleblower Protection Act.

The person designated as a whistleblower response service employee must not divulge the name, employee ID number, or other information that would allow a whistleblower to be identified without a justifiable reason, and there is a criminal penalty of up to 300,000 yen for violating this duty of confidentiality.

Last updated on 15/09/2022

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Mexico

  • at Galicia

Unlike in the US or other jurisdictions, whistleblowing is not expressly regulated in Mexico.  The FLL does not provide for whistleblower protection, but allows sufficient flexibility for employers to implement internal policies in this regard.

Often, derived from legal compliance and corporate governance practices, Mexican employers replicate and endorse whistleblower policies implemented worldwide by their headquarters or holding company, adapting them to local regulations and implementing complaint mechanisms. The key issues with such complaint mechanisms are to guarantee confidentiality, anonymity and no retaliation. 

Whistleblower policies may help to mitigate or extinguish the criminal liability of companies.

Last updated on 15/09/2022

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Netherlands

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

The current Act on the House for Whistleblowers provides for several preconditions that the whistleblowing procedure must meet. For example, internal reporting lines must be laid down, as well as how the internal report is handled, and an obligation of confidentiality and the opportunity to consult an advisor in confidence must be applied. Employers are obliged to share the whistleblowing policy with employees, including information about the employee's legal protection. The employee who reports a suspicion of wrongdoing in good faith may not be disadvantaged in his or her legal position because of the report (section 7:658c DCC).

The starting point of current law is that an employee must first report internally, unless this cannot reasonably be expected. If the employee does not report internally first, the House for Whistleblowers does not initiate an investigation. The House for Whistleblowers was established on 1 July 2016 and has two main tasks: advising employees on the steps to take and conducting an investigation in response to a report.

The Act on the Protection of Whistleblowers, which is intended to enter into force at the end of 2022, proposes several changes, of which the most relevant are:

  • Abolition of mandatory internal reporting: the obligation to report internally first is abolished. Direct external reporting will be allowed, such as to the House for Whistleblowers or another competent authority. When reporting externally, the reporter will retain his protection. However, reporting internally first remains preferable and will be encouraged as much as possible.
  • Expansion of prohibition on detriment: The prohibition on detriment only includes prejudicing the legal position of the reporter, such as suspension, dismissal, demotion, withholding of promotion, reduction of salary and change of work location. In future, the prohibition will include all forms of disadvantage, such as being blacklisted, refusing to give a reference, bullying, intimidation and exclusion. 
  • Stricter time limit requirements for internal reporting: the reporter must receive an acknowledgement of receipt of the report within seven days and the reporter must receive information from the employer on the assessment of his or her report within a reasonable period, not exceeding three months.
  • Extension of the circle of protected persons: not just employees, but third parties who are in a working relationship with the employer will also be protected, such as freelancers, interns, volunteers, suppliers, shareholders, job applicants and involved family members and colleagues.
Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Consideration must be given to the confidentiality or anonymity of the whistleblower, when an investigation involves whistleblowing.

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

The treatment of whistleblowers and their reports is laid down in various specific laws in Portugal.

Law 93/2021

Under Law 93/2021, a whistleblower of work-related offences must not be retaliated against. Furthermore, imposing disciplinary penalties on the whistleblower within two years after their disclosure is presumed to be abusive. The whistleblower is entitled to judicial protection and may benefit from the witness protection programme within criminal proceedings. Additionally, reports will be recorded for five years and, where applicable, personal data that is not relevant for the handling of a specific report will not be collected or, if accidentally collected, will be deleted immediately.

Corruption and Financial Crime Law (Law 19/2008)

Under Law 19/2008, a whistleblower must not be hampered. Furthermore, the imposition of disciplinary penalties on a whistleblower within one year following the communication of the infraction is presumed to be unfair.

Additionally, whistleblowers are entitled to:

  • anonymity until the pressing of charges;
  • be transferred following the pressing of charges; and
  • benefit from the witness protection programme within criminal proceedings (remaining anonymous upon the verification of specific circumstances).

Money Laundering and Terrorism Financing Law (Law 83/2017)

Law 83/2017, which sets forth the legal framework to prevent, detect and effectively combat money laundering and terrorism financing, applies to financial entities and legal or natural persons acting in the exercise of their professional activities (eg, auditors and lawyers)(collectively, obliged entities).

According to article 20 of Law 83/2017, individuals who learn of any breach through their professional duties must report those breaches to the company's supervisory or management bodies. As a result, the obliged entities must refrain from threatening or taking hostile action against the whistleblower and, in particular, unfair treatment within the workplace. Specifically, the report cannot be used as grounds for disciplinary, civil or criminal action against the whistleblower (unless the communication is deliberately and clearly unjustified).

Legal Framework of Credit Institutions and Financial Companies (RGICSF)

Credit institutions must implement internal-reporting mechanisms that must guarantee the confidentiality of the information received and the protection of the personal data of the persons reporting the breaches and the persons charged. Under article 116-AA of RGICSF, persons who, while working in a credit institution, become aware of:

  • any serious irregularities in the management, accounting procedures or internal control of the credit institution; or
  • evidence of a breach of the duties set out in the RGICSF that may cause any financial imbalance, must communicate those circumstances to the company's supervisory body.

These communications cannot, per se, be used as grounds for disciplinary, criminal or civil liability actions brought by the credit institution against the whistleblower.

Moreover, article 116-AB of the RGICSF establishes that any person aware of compelling evidence of a breach of statutory duties may report it to the Bank of Portugal. Such communications cannot, per se, be used as grounds for disciplinary, criminal or civil liability actions brought by the credit institution against the whistleblower, unless the report is clearly unfounded.

The Bank of Portugal must ensure adequate protection of the person who has reported the breach and the person accused of breaching the applicable duties. It must also guarantee the confidentiality of the persons who have reported breaches at any given time.

Portuguese Securities Code (CVM)

Article 382 of the CVM states that financial intermediaries subject to the supervision of the Portuguese Securities Market Commission (CMVM), judicial authorities, police authorities, or respective employees must immediately inform the CMVM if they become aware of facts that qualify as crimes against the securities market or the market of other financial instruments, due to their performance, activity, or position.

Additionally, according to article 368-A of the CVM, any person aware of facts, evidence, or information regarding administrative offences under the CVM or its supplementary regulations may report them to the CMVM either anonymously or with the whistleblower's identity. The disclosure of the whistleblower's identity, as well as that of their employer, is optional. If the report identifies the whistleblower, their identity cannot be disclosed unless specifically authorised by the whistleblower, by an express provision of law or by the determination of a court.

Such communications may not be used as grounds for disciplinary, criminal, or civil liability action brought against the whistleblower, and they may not be used to demote the employee.

According to article 368-E of the CVM, the CMVM must cooperate with other authorities within the scope of administrative or judicial proceedings to protect employees against employer discrimination, retaliation or any other form of unfair treatment by the employer that may be linked to the communication to the CMVM. The whistleblower may be entitled to benefit from the witness-protection programme if an individual is charged in criminal or administrative proceedings because of their communication to the CMVM.

Last updated on 15/09/2022

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Singapore

Singapore

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

Under the Prevention of Corruption Act 1960 and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (CDSCA), in any civil or criminal proceeding, no witness is obliged to disclose the name or address of any informer, or disclose any information that might lead to his or her discovery concerning offences such as corruption, drug trafficking, and money laundering, save where:

  • in any proceeding for the offence, the Court, after a full inquiry into the case, is of the opinion that the informer wilfully made, in his complaint, a material statement that he knew or believed to be false or did not believe to be true; or
  • in any other proceeding, the court is of the opinion that justice cannot be fully done between the parties without the discovery of the informer.

In line with the above, employers should therefore keep the informer’s identity confidential upon receiving a complaint relating to corruption, drug trafficking, money laundering, and other serious offences prescribed in the second schedule of the CDSCA.

Last updated on 15/09/2022

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South Korea

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

Aside from the legal obligations imposed on the company when dealing with a whistleblower who is subject to the WPA as discussed in question 1, there are also practical considerations the company should keep in mind when dealing with a whistleblower, regardless of whether the whistleblower falls under the WPA.

For example, there have been instances where an employee who raised allegations filed a complaint with Korean authorities (such as the Anti-Corruption and Civil Rights Commission (ACRC) or the Labour Office) that the company took retaliatory action against the whistleblower. The company should carefully review the legal risks before taking action, such as personnel action or civil or criminal action, against an employee who raises allegations if that employee was also involved in the wrongdoing.

Last updated on 15/09/2022

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Spain

  • at Uría Menéndez
  • at Uría Menéndez

Spain has not transposed the EU Directive to protect whistleblowers yet (Directive (EU) 2019/1937 of the European Parliament and of the Council, of 23 October 2019, on the protection of persons who report breaches of Union law). However, the purpose of this Directive is embedded in the general principles of Spanish employment law, which limit the capacity of companies to retaliate or to take any action against employees who report workplace violations or breaches of the law. Any action taken against an employee in such a position would be considered null and void if challenged in court.

Spanish law allows anonymous reports to protect whistleblowers from retaliation.

Last updated on 15/09/2022

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Sweden

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

If the Swedish Whistleblowing Act governs the investigation, additional considerations apply relating to who may investigate a reported irregularity (see question 4) and the duty of confidentiality and restrictions on access to and disclosure of personal data in investigations (see questions 6, 10 and 11), as well as the rights and protections of whistleblowers.

As regards the rights and protections of whistleblowers, the following can be noted. A person reporting in a reporting channel governed by the Swedish Whistleblowing Act is protected against retaliation and restrictive measures. Thus, companies are prohibited from preventing or trying to prevent a person from reporting, and retaliating against a person who reports. Furthermore, a reporting person will not be held liable for breach of confidentiality for collecting the reported information if the person had reasonable grounds to believe that it was necessary to submit the report to expose irregularities. Under the Swedish Whistleblowing Act, any person reporting irregularities in a reporting channel established under the Swedish Whistleblowing Act may also report irregularities to designated Swedish authorities.

Last updated on 15/09/2022

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Switzerland

  • at Bär & Karrer
  • at Bär & Karrer

If an employee complains to his or her superiors about grievances or misconduct in the workplace and is subsequently dismissed, this may constitute an unlawful termination (article 336, Swiss Code of Obligations). However, the prerequisite for this is that the employee behaves in good faith, which is not the case if he or she is (partly) responsible for the grievance.

Last updated on 15/09/2022

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Thailand

  • at Chandler MHM
  • at Chandler MHM

It is down to the employer’s discretion to commence the investigation resulting from a complaint from a whistleblower. Whistleblowers and those who cooperate with an investigation should be protected. Normally the employer would not try to identify the whistleblowers. Also, it is best not to reveal the identity of the witness or the source of information; otherwise, they may feel uncomfortable giving information or raising their concerns next time. Any allegations of retaliation that surface during the investigation should be treated as a new report of possible misconduct that could be subject to additional investigation.

Last updated on 15/09/2022

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Turkey

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

Although there is no specific legislation in Turkish law on whistleblowing, necessary mechanisms need to be implemented to ensure that whistleblowers and the whistleblowing process are kept confidential. In addition, whistleblowers must be encouraged and supported to be open about raising their concerns in good faith. A whistleblowing activity, when it amounts to raising a concern in good faith, must not be mistreated by the employer. Employers should also put in place protection mechanisms against the mistreatment of whistleblowers or retaliation towards them by other employees.   

Last updated on 15/09/2022

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United Kingdom

  • at Slaughter and May
  • at Slaughter and May

The employer should first identify which individuals may have protection as whistleblowers. This could be a current or former employee who raises the initial complaint, a co-worker who gives evidence as part of the investigation, or the accused employee.

In each case, consider whether a “protected disclosure” has been made (under Part IVA ERA 1996). This requires analysis of the subject matter of the disclosure, how it is made, and a reasonable belief that it is made in the public interest.

Employers must then ensure there is no detrimental treatment or dismissal of any worker on the grounds of their protected disclosure. Although the causation test for these purposes is not straightforward, as a general rule if the protected disclosure has a “material influence” on the decision to discipline or dismiss, there may be liability. Individual managers may be personally liable alongside the employer. Compensation for whistleblowing cases is uncapped, meaning businesses and individuals can face significant financial and reputational exposure.

What this means in practical terms is that the employer should promote a “speak-up” culture and, where protected disclosures are made, ensure they are handled by a team who are properly trained in how to do so.

Last updated on 15/09/2022

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United States

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

Several federal, state, and local employment laws prohibit retaliation against employees who come forward with complaints or participate in corporate investigations. Employees who possess information regarding corporate misconduct may also be considered whistleblowers protected from retaliation under federal and state whistleblower laws, including but not limited to the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Consumer Financial Protection Act of 2010.

An employee generally does not need to show that he or she was terminated or demoted to bring a retaliation claim; other actions on the part of the employer may qualify if they could be seen to discourage employees from raising complaints. To protect against a potential retaliation claim, employers should make clear at the outset of an investigation that retaliation will not be tolerated and require the complaining employee (and potentially his or her manager) to bring any instances of retaliation to the investigator’s attention immediately.

Last updated on 15/09/2022

10. What confidentiality obligations apply during an investigation?

10. What confidentiality obligations apply during an investigation?

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Australia

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

Confidentiality protects the interests of the persons involved in the investigation as well as the integrity of the investigation. Before providing information as part of the investigation, employers should direct the complainant, respondent or witnesses to sign confidentiality agreements. This agreement should direct the person to refrain from discussing the investigation or matters that are the subject of the investigation with any person other than the investigator.

It is also best practice for participants in the investigation to be directed not to victimise (threaten or subject to any detriment) any persons who are witnesses to or are otherwise involved in the investigation.

After an investigation, employers should write to the complainant, respondent and any witnesses reminding them of their ongoing confidentiality obligations.

Last updated on 15/09/2022

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Belgium

  • at Van Olmen & Wynant

A workplace investigation is often a sensitive matter that requires necessary confidentiality to find out the truth discreetly and objectively. Nevertheless, there is often pressure from employees, trade unions or even the media and general public to be transparent and communicate about the case. From a legal perspective, it is not recommended to communicate openly about an ongoing investigation, as this can jeopardise the investigation or the possibility of taking disciplinary measures.

Whistleblower investigations will be bound by a strict duty of confidentiality regarding anything that could reveal the identity of the reporter.

In complaints due to sexual harassment, violence or bullying at work, the prevention adviser is bound by professional secrecy. Consequently, he or she may not disclose to third parties any information about individuals that have come to his or her knowledge in the performance of his or her duties. However, he or she still has the freedom to inform the people concerned to carry out his or her tasks in the procedure.

Last updated on 15/09/2022

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Finland

Finland

  • at Roschier
  • at Roschier

Concerning a workplace investigation, there is no specific legislation in force at the moment regarding confidentiality obligations. All normal legal confidentiality obligations (eg, obligations outlined in the Trade Secrets Act (595/2018)), and if using an external investigator, the confidentiality obligations outlined in the agreement between the employer and the external investigator, apply. Attorneys-at-law always have strict confidentiality obligations as per the Advocates Act (496/1958).

Last updated on 15/09/2022

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France

  • at Bredin Prat
  • at Bredin Prat

Interviewers, investigators, interviewees or any others involved in the investigation are often bound by a reinforced confidentiality obligation, particularly when the internal investigation is triggered by a whistleblower alert. In addition, every person that comes to know of the investigation, facts or people involved is bound by an obligation of discretion. Furthermore, investigators should specifically be trained for interviews and be reminded of their obligations relating to the investigation.

The investigators will need to determine the order of the tasks to be carried out in the investigation, as this will have a significant impact on confidentiality management. Should they start with the hearings or a review of documents? The answer may depend on the subject matter of the investigation. It is advisable to first review the documentation before organising interviews, particularly to avoid the destruction of certain documents by employees acting in bad faith or by those wishing to erase the traces of alleged wrongdoing. Sometimes, however, it is possible to start with the interviews, especially in the case of harassment, as there may be no documents to review. If the decision is taken to conduct the documentation review after the interviews, it could be useful to ask the employees involved to sign a document stating that they must preserve and retain documents, meaning that if they delete or destroy documents, they would be acting against the company and in breach of the law.

Last updated on 15/09/2022

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Germany

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

Depending on the subject of the investigation and the severity and significance of the suspected violation, employees who are involved in the workplace investigation may already have to maintain confidentiality based on their contractual duties. The prerequisite for this is that the employer has a legitimate interest in maintaining confidentiality. Criminal acts are not subject to confidentiality, but there is also no general obligation for the employee to report or disclose a criminal act to the authorities or the public prosecutor. However, reporting to the competent authorities may be required in certain cases (see question 25).

Lawyers are bound by professional confidentiality and are generally not allowed to provide information about any information they receive from their clients. An exception exists, for example, if the lawyer must provide information to defend himself in court proceedings. There is also no absolute protection against the seizure of documents at an attorney’s office (see question 14).

Last updated on 15/09/2022

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Hong Kong

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

Workplace investigations should usually be conducted on a confidential basis to preserve the integrity of the investigation, avoid cross-contamination of evidence and maintain the confidentiality of the employee under investigation. This means that those involved in the investigation (ie, the subject employee and any material witnesses) should be made aware of the fact and substance of the investigation on a need-to-know basis.

While the extent of the confidentiality obligations are usually governed by the employer’s internal policies and the employment contract, there are circumstances where the employer has a statutory duty to keep information unearthed in the investigation confidential. For instance, if it is found that certain property represents proceeds of an indictable offence[1] or drug trafficking[2], or is terrorist property[3], the employer should report its knowledge or suspicion to the Joint Financial Intelligence Unit (JFIU) as soon as is reasonably practicable and avoid disclosure to any other person as such disclosure may constitute “tipping off”. Another example is if a workplace investigation is commenced in response to a regulatory enquiry, the employer may be bound by a statutory secrecy obligation and may not be at liberty to disclose anything about the regulatory enquiry to anyone including those who are subject to the workplace investigation. For example, section 378 of the Securities and Futures Ordinance (SFO) imposes such a secrecy obligation on anyone who is under investigation or assists the Securities and Futures Commission (SFC) in an investigation.[4]

 

[1] OSCO section 25A(5). A person who contravenes the section is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 3 years, or upon summary conviction to a fine of $100,000 and to imprisonment for 1 year.

[2] DTROPO section 25A(1). A person who contravenes the section is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 3 years, or upon summary conviction to a fine of $100,000 and to imprisonment for 1 year.

[3] UNATMO section 12(1). A person who contravenes the section is liable on conviction to a fine and to imprisonment for 3 years, or upon summary conviction to a fine of $100,000 and to imprisonment for 1 year.

[4] A person who fails to maintain secrecy is liable upon conviction on indictment to a maximum fine of $1 million and imprisonment for up to two years (or upon summary conviction, to a maximum fine of $100,000 and imprisonment for up to six months).

Last updated on 15/09/2022

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India

  • at Trilegal
  • at Trilegal
  • at Trilegal

Indian labour statutes do not contain any specific confidentiality obligations concerning investigations. However, in practice, the records of investigative or disciplinary proceedings should be kept confidential and shared only on a need-to-know basis to ensure that the parties do not suffer prejudice. The internal policies should also include provisions on confidentiality.

The SH Act, however, provides that certain information must not be published or made known to the public, press and media such as:

  • the contents of the SH complaint;
  • the identity and addresses of the complainant, accused and witnesses;
  • any information on the conciliation and inquiry process;
  • the recommendations of the IC; and
  • action to be taken by the employer.

The SH Act permits the dissemination of information regarding remedies extended to any victim without disclosing the name, address or identity of the victim or witnesses. The SH Act also outlines punishments for violating confidentiality obligations.

Last updated on 15/09/2022

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Ireland

Ireland

  • at Arthur Cox
  • at Arthur Cox

Workplace investigations are confidential processes. A failure to maintain confidentiality could have a significant negative impact on the employee who is the subject of the investigations and indeed any other persons involved in it.

At the commencement of a workplace investigation, an investigator should make it clear to all participants that the process is confidential and should not be discussed with anyone outside of the investigation, unless they would like to seek advice from an employee representative or lawyer, for example. 

An investigator should not disclose information gathered during the investigation to any person unless it is necessary to do so to properly conduct a fair investigation and communicate the findings made.

There are additional confidentiality requirements concerning whistleblowing investigations, which are outlined in question 9.

Last updated on 15/09/2022

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Italy

  • at BonelliErede
  • at BonelliErede

From an employment law perspective, confidentiality obligations may be seen from two different points of view:

  • as a general duty of the employee related to the employment relationship, according to article 2105 of the Italian Civil Code, a “loyalty obligation”, which includes confidentiality obligations. On top of these, there are usually further confidentiality clauses in individual employment contracts; and
  • as a general duty (linked to the outcome of the investigation) of the employer to keep confidential the identity of the employee who cooperates during the investigation (as whistleblower or a witness) to protect him or her.

In defensive criminal law investigations, the witness can’t reveal questions or answers given in his or her interview to a third party.

Last updated on 15/09/2022

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Japan

  • at Mori Hamada & Matsumoto

See question 9 for the confidentiality obligations of a whistleblower response service employee.

Other than the above, there is no specific legal obligation to maintain confidentiality for persons in charge of investigations, etc. However, if the information falls under the category of confidential information obtained by employees in the course of their work, compliance is required as an obligation attached to a labour contract, and many employment regulations stipulate a duty to keep information obtained in the course of work confidential.

Last updated on 15/09/2022

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Mexico

  • at Galicia

According to article 134 of the FLL, employees have a general obligation to carefully keep the technical, commercial and manufacturing secrets of the products they have directly or indirectly helped develop, or of which they have knowledge due to the work they perform, as well as the employer’s reserved administrative matters, the disclosure of which may cause harm to the company.

Further, under article 47 of the FLL, revealing trade secrets or divulging matters of a reserved nature to the detriment of the employer is considered grounds for justified dismissal without liability for the employer (ie, without severance pay).

The contents of a workplace investigation may fall within the category of a “reserved administrative matter” and, therefore, the contact person or committee in charge of conducting the investigation is subject to a duty of confidentiality. 

As mentioned throughout this chapter, employers must ensure that complaint mechanisms are safe, confidential and anonymous, where possible. Additionally, their Protocol or policies must establish that there should be no retaliation against employees.

Last updated on 15/09/2022

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Netherlands

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

The principle of due care requires employers to act prudently when it comes to sharing the identity of persons involved, such as complainants and implicated persons; and investigative findings, notably when certain employees may be implicated. As a result, such information is usually shared within an employer to designated departments on a need-to-know basis only. Additional safeguards as to the protection of whistleblowers' identities will apply once the Whistleblower Directive (see question 9) has been implemented in Dutch law. Also, see question 13 for the confidentiality obligations of employees vis-à-vis their employer.

Last updated on 15/09/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Workplace investigations should be kept strictly confidential to protect the parties involved in the investigation from victimisation. Some of the confidential obligations that apply during investigations are the identities of the parties involved in the process (whether as a complainant, respondent or witnesses), the confidentiality of reports, recordings and other documents generated or discovered during the investigation, as well as attorney-client privilege between the employee and his or her attorney, provided that such privilege is within the bounds of the law.

Last updated on 15/09/2022

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Portugal

  • at Uría Menéndez - Proença de Carvalho
  • at Uría Menéndez - Proença de Carvalho

The Portuguese Labour Code does not specifically provide for any confidentiality obligations concerning disciplinary procedures. On the contrary, it states that the employee should have access to any information included in the disciplinary procedure. Otherwise, the employee’s defence rights could be jeopardised, which would make the disciplinary procedure (and possible disciplinary sanctions) null and void.

As for the witnesses, even though there is no specific provision on confidentiality, employees are generally bound by a duty of loyalty vis-a-vis the employer, which includes not disclosing information that should be kept reserved,

However, in the cases of whistleblowing, it is mandatory to ensure the confidentiality of the complainant, as per question 9.

Last updated on 15/09/2022