Geneva-based lawyer Renuka Cavadini from Page & Partners breaks down your rights at work if you are placed under investigation.
Purpose of the internal investigation
The employer is obliged, in accordance with Art. 328 CO, to protect the personality of the employee.
This duty obliges the employer to clarify any situation in which an employee is suspected of having violated rules/regulations and/or internal policies applicable to the company and to verify the facts reported, whether or not they are established.
Internal investigations have become common in multinational companies because of the increase in compliance concerning private or public corruption, sexual harassment, etc.
Although an employer can terminate an employee without a specific cause, as long as the former complies with the legal notice of termination, (“ordinary” termination), the termination may be considered abusive in certain circumstances.
These include firing the employee because he/she invoked his/her rights or termination due to accusations without any verification of the facts or allowing the accused to present his/her position. Therefore the internal investigation is necessary to establish the facts.
Although the purpose of the internal investigation is supposed to be to collect facts and the positions of each party, this can be delegated to former police officers or retired secret service agents, which can make the interrogation very aggressive, coercive and uncomfortable.
Is this a criminal investigation?
An internal investigation is in many ways similar to a criminal investigation. Whereas in the latter you fear the authorities and a criminal sanction or even a criminal record, in the former, you are even afraid to call a lawyer because you are worried about the financial stability of your family and you want to trust your employer.
However, you are entitled to a fair and impartial process.
Your rights before the interrogation
– To know all the charges that you have been accused of (including receiving copies of relevant policies and procedures);
– To have access to your personal data file (including complaints filed against you, your employment agreement, personal evaluations, your HR file)
In practise, this information is often provided in a piecemeal manner to limit your knowledge of the situation before they begin the interrogation.
It is important to send emails showing your requests for information and pointing out what you have not been provided with.
At this stage, we highly recommend that you contact your legal protection insurance and request that they accept to appoint a lawyer for you or accept your lawyer so that you are well accompanied throughout the process.
What happens if you are placed under investigation in your workplace? Image: Pexels
Present the facts to the lawyer and go through a mock interrogation to prepare yourself for the real interrogation.
Choose a lawyer that has flexible hours because your interrogations could begin early in the morning and end late at night. You may want to discuss the proceedings of the day with your lawyer if you have decided to keep a lawyer behind the scenes.
The pressure you are under during such an investigation, with sleepless nights, can make you confuse facts, admit to things you have not done, simply because you are exhausted mentally and physically. It is therefore important to insist on the breaks, not have days which are too long and not reply when you are not sure.
Your rights during the interrogation
– To be accompanied by a lawyer and/or a trusted person, who will act as counsel and/or witness, should there be a discrepancy;
-To insist on the minutes of the meeting being transcribed and not recorded. This allows you to make corrections at the end of each session. The recording of the interrogation is not possible without your consent.
– To take notes and ask for as many breaks as you may need.
– To provide useful documents or papers as evidence for allegations made against you.
– To remain silent during the internal investigation or even insist on replying once you have examined the policy, procedure or email that is being referred to.
-To ask for access to all your emails, personal files etc. which will allow you to counter the allegations made against you.
– Ask and obtain the interrogation of persons that could be witnesses in your favour.
– Ask and obtain a copy of the minutes of the meeting to provide a final written statement to be provided to the persons who will make the final decision concerning the investigation. This statement should point out all the breaches of procedures during the investigation (which are very frequent unfortunately). The support of a lawyer for this written statement should not be underestimated.
The investigators are not supposed to threaten or coerce you during the investigation. If the threat or coercion is established in writing, it may be the subject of a criminal complaint against your employer.
The outcome of the investigation?
If it is established that there was no misconduct or that it is not serious, then the matter will be closed and the you will remain within the company.
If the offending conduct is not serious, you may be warned to stop the offending conduct.
The employer can decide to terminate you with immediate effect he/she believes there are sufficient grounds to establish the serious misconduct. If the employer considers that the misconduct is not serious but is sufficient to break the bond of trust between you, then there will be ordinary termination.
The use of an internal investigation has become a relatively common procedure in both private and public structures, without the concerned employee knowing what to expect, how to prepare for it and its outcome. The employee who is subject to an internal investigation is therefore advised to consult a lawyer to assist him or her (on or behind the scene) before and throughout the process.
The wording used by the employee in his/her emails to the investigators, makes them realise the presence of a lawyer and forces them to comply with legal procedures. The breaches of procedures which are pointed out can guarantee a generous termination package for the employee in case of termination, to avoid litigation.
Therefore, do not underestimate the importance of having a lawyer during such proceedings.