An internal investigation is being launched against me: What now?
Filippo Börner
Junior Legal Associate
Marcel Stucky
Senior Legal Associate
Michèle Stutz
Legal Partner
More and more frequently, companies are conducting so-called internal investigations in order to follow up, i.e. clarify, allegations reported to them internally. For the employees concerned against whom such investigations are initiated, this can come out of the blue. As such investigations can drag on, this can be very stressful for the employees concerned.
This article deals with two aspects: Firstly, the rights of the employees concerned, and secondly, the impact of internal investigations on the employment relationship.
1. What rights do I have? Can I refuse to give evidence and co-operate?
When affected employees are confronted with accusations for the first time, the following questions usually arise: Who has accused me? What exactly am I being accused of and how should I respond to these accusations? The latest case law of the Federal Tribunal provides some answers to these questions. In its decision 4A_368/2013 of 19 January 2024, the Federal Tribunal in particular held that the criminal procedural guarantees do not apply.
This has far-reaching consequences for the rights of the employees concerned in the context of internal investigations. In particular, the employee concerned does not have a comprehensive right to inspect the files. The employer is obliged to inform the employees concerned about the allegations. However, the employer is not obliged to disclose the personal details of the person who made the allegations. Finally, there is also no guaranteed absolute right to refuse to testify and co-operate as in criminal proceedings: Employees are generally obliged to provide their employer with comprehensive and truthful information about all business transactions and to co-operate in internal investigations (cf. Art. 321a para. 1 of the Swiss Code of Obligations (CO)).
However, the non-application of criminal procedural guarantees does not mean that the employees concerned are to a certain extent unprotected by internal investigations and that the employer does not have to adhere to any guidelines.
In the labour law doctrine, the approach is taken that a right to refuse to testify should at least be permissible in cases in which the employee concerned must reasonably expect that, in addition to the internal investigation, criminal investigation proceedings are pending or will be initiated against him. In these cases, according to some authors, the employee should not be obliged to incriminate himself under criminal law (so-called nemo-tenetur principle). The employees concerned should also (proactively) demand that they can be accompanied to the interviews by a person they trust (e.g. a lawyer) (although this is a controversial topic in legal doctrine).
2. What are the consequences of an internal investigation?
After conducting the internal investigation and if the reported allegations are confirmed, the employer decides what consequences are to be drawn. For example, it can issue a warning. The employer can also dismiss the employee concerned without notice or with due notice. The principle of freedom of dismissal applies. In both cases, the dismissal is effective, even if it was unjustified or abusive.
Dismissal without notice may be unjustified if the employer cannot reasonably be expected to continue the employment relationship. This is the case, for example, if the allegations prove not to be serious enough. Conversely, a dismissal may be abusive if the employer accepts the allegations reported to it as proven without sufficient investigation or does not sufficiently inform the employees concerned about the allegations. In both cases, the consequences are financial in nature; reinstatement cannot be demanded (an exception is only possible under the Gender Equality Act).
3. Conclusion: Be clear about the rules and define a strategy
The main challenge of internal investigations from the perspective of the employees concerned is that, unlike criminal investigations, they are not clothed in a tight legal framework. The employer is relatively free in its organisation and the employees concerned cannot simply rely on guarantees under criminal law. Rather, a balancing of interests is often required in order to answer specific questions such as the extent of the duty to co-operate in the investigation. It is advisable to consult a specialist at an early stage in order to familiarise yourself with the rules and define a strategy that goes beyond the end of the internal investigation.
We are happy to advise and represent you as an affected employee in the context of internal investigations and related legal proceedings.
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).
