Internal investigations are a fascinating area of labour and employment law. Unlike other routine areas of our daily practice, investigations often feel like a detective novel. They also usually involve intense time pressures and have the attention of the senior management at the employer. For these reasons, employers and their legal advisers need to have up-to-date legal knowledge on best practice in relation to investigations.
The traditional subjects for internal investigations have often been fraud or theft against the employer. However, more recently, data breaches and data theft have become the focus. No matter what the topic is, the purpose of the investigation is to discover whether there is exposure for the employer and if so, to limit the damage, recuperate lost property if possible, and prepare (if need be) for the termination of an employee. Typical subjects for employment investigations in the United States are allegations of discrimination, retaliation and/or sexual harassment. Some of the lesser known but equally important areas of investigation involve allegations of bribery or violations of health and safety or environmental protection rules.
In all internal investigations, certain procedures must be observed. Often, those procedures derive from universal principles of fairness, notice and due process. Other procedures, such as the required timing of investigations, or the need to involve trade unions or works councils, vary significantly across the countries.
More recently, questions have arisen around employees’ expectations of privacy in the workplace in relation to the monitoring of emails, databases, personal devices, and social media. Professional service providers offer data searches and in some cases, may act upon instructions from a (potentially non-EU) parent company. A related issue is the monitoring of employee data and employee behaviour by camera surveillance (open or covert) or GPS tracking. The rules that govern the employer’s ability to conduct technical searches are fairly similar across the countries we have considered. In some cases, they are based on specific legislation (such as in Italy). In other cases, the rules are based on broad constitutional principles and the legal literature.
This publication provides a general overview of the legal principles that employers must follow when conducting internal investigations in different countries around the world. We have asked all the countries the same questions so as to enable the reader to use it to read across from one country to another. As always in labour and employment law, the best legal and tactical approach will ultimately depend on the facts of the particular case, but we hope this guide will provide the reader with a helpful starting point.