Internal investigations have become an integral part of today's business world. How they are legally assessed is always a question of perspective.
Filippo Börner
Junior Legal Associate
Marcel Stucky
Senior Legal Associate
Michèle Stutz
Legal Partner
In a three-part series of magazine articles, "Internal investigations in Switzerland" will be legally analysed from three different points of view: from the perspective of the whistleblower (Part I), accused person (Part II) and the employer (Part III).
Part II and III will follow in the coming weeks.
Whistleblowing: Can I request the initiation of an internal investigation?
Whistleblowing is the reporting of misconduct in a company. This article looks in particular at the questions of the extent to which an employee is obliged to report wrongdoing, how a report must be made in a legally correct manner and what needs to be considered in the event of an internal investigation.
1. Do I have to report?
Yes, as an employee you are obliged to inform your employer of any misconduct by other employees. This obligation is based on the duty of loyalty towards the employer (Art. 321a of the Swiss Code of Obligations (CO)). The limits of the duty to report depend on the employer's legitimate interests. According to an opinion expressed in labour law literature, employees in lower positions are only obliged to report if the damage that has occurred or is intended is disproportionately high, while senior employees are always obliged to report due to their position of trust.
2. How can I report misconduct in a legally correct manner? Can I turn to the public?
In Switzerland, there are no clear legal rules on how misconduct can be reported in a legally correct manner. Under current law, misconduct should first be reported internally to an appropriate body that is authorised and competent to uncover and investigate the matter. This may be an internal organisation, such as the compliance or legal department, or an external organisation, such as a law firm appointed by the employer.
Whilst there may even be an obligation to inform the employer of misconduct, going public should only be done in extreme cases. Before considering going to the public or to an authority, the employer should always be informed first so that the employer has the opportunity to remedy the misconduct without causing a stir. If the employer does not take action, the employee can turn to the competent authority, which can address the misconduct without any loss of reputation in the public eye. Only if neither the employer nor the competent authorities take remedial action, and the seriousness of the incidents justifies this should the employee consider going public. In any case, the criticism must be factual and non-polemical.
Compliance with this procedure increases the chances that a dismissal in response to a whistleblowing incident will be deemed abusive, which means that the employer must pay the employee financial compensation of up to six months' wages. The burden of proof for an abusive dismissal lies with the whistleblower. It is therefore recommended to keep all relevant information and proof of communication carefully. Further details can be found in our magazine article from 19 November 2020.
3. Is there a right to an internal investigation? What are my rights as a whistleblower in the context of such an investigation?
The whistleblower has no legal right to have incidents reported by him/her clarified as part of an internal investigation. However, something else may apply if the employer explicitly grants such a right in the company regulations or provides for internal investigations in such cases.
Irrespective of this, from an employment law perspective, the employer has a duty to clarify the facts in certain cases on the basis of its duty of care (Art. 328 CO) to protect other employees if it has received concrete evidence of bullying, harassment or other inappropriate behaviour towards an employee.
If the employer decides to conduct an internal investigation due to internal whistleblowing, employees are obliged to provide truthful, complete and timely information as a result of their duty of loyalty (Art. 321a CO). This also applies to the whistleblower. According to the case law of the Federal Tribunal, whistleblowers can be assured that their identity will be treated confidentially (BGer 4A_368/2023 of 19 January 2024, E. 4.4.3). However, this assurance cannot always prevent the accused person from gaining knowledge of the whistleblower's identity, e.g. when both persons are part of a very small team. A confrontation in the actual sense, in which the whistleblower is questioned in the presence of the accused person, should be avoided as this would go too far.
4. Conclusion: If in doubt, report the misconduct internally
As an employee, you have a duty to inform your employer about misconduct by colleagues. Misconduct must first be reported internally to a suitable internal reporting office that is authorised and competent to uncover and investigate the reported facts (e.g. compliance or legal department). Going public should only be considered as a last resort in extreme cases.
At the same time, in most cases, whistleblowers are not entitled to have their employer conduct an internal investigation. However, it always depends on the specific framework conditions established by the employer. It is advisable to familiarise yourself with these framework conditions.
We are happy to advise you as an employee on the correct reporting of misconduct in the workplace and represent you in related legal proceedings.
