CHINA Law and Practice Contributed by: Yang Cheng, Songshan Liu, Yan Yu and Weina Wang, Lantai Law Firm
mation. An NDA therefore clarifies and reinforces con - fidentiality obligations, but is not a legal prerequisite for their existence. 2.4 Preliminary Investigation and Scope- Setting Under PRC law, employers are generally permitted to conduct a limited preliminary review or initial fact- checking exercise before deciding whether to launch a formal HR internal investigation. Such reviews fall within the employer’s management authority and are commonly used to assess whether alleged miscon - duct, disciplinary issues or compliance risks warrant a full investigation. Preliminary reviews are narrower in scope and subject to basic legal constraints. Where personal information is accessed, processing must have a lawful basis and be limited to what is necessary. Preliminary inquiries must not involve unlawful monitoring, coercive meas - ures, restrictions on personal freedom, or investigative steps that themselves result in adverse employment consequences. In practice, many employers adopt a staged approach, with HR, legal, compliance or internal audit functions conducting initial assessments to evaluate credibility, risk level and scope, and to determine whether esca - lation to a formal investigation is required. Findings are typically documented internally for decision-making purposes. Judicial and administrative practice generally recog - nises the legitimacy of preliminary reviews, provided that any subsequent disciplinary action or termina - tion is supported by a procedurally sound and lawful formal investigation.
or other employees with first-hand knowledge of the relevant facts. Where allegations involve internal controls, financial matters or compliance risks, interviews may also include personnel responsible for relevant process - es, such as management, HR, finance, audit, legal or compliance functions. In sensitive or high-impact cases, senior management may be interviewed. PRC law does not prescribe the number of interview - ees. The scope of interviews depends on the com - plexity of the matter and the need for corroboration. Interview records are typically documented in writ - ing and reviewed and confirmed by interviewees for evidentiary purposes. 3.2 Participation Where an internal investigation is conducted pursuant to lawfully implemented company policies and relates to employment management, employees are gener - ally expected to provide reasonable co-operation. A refusal to participate, or selective non-cooperation, may give rise to disciplinary consequences where company rules expressly require co-operation. In practice, employers usually inform employees of the purpose and scope of the investigation and docu - ment any refusal to co-operate. Such refusal does not require suspension of the investigation, and employers may continue fact-finding through other lawful means, including document review and system records within the employer’s control. Where internal rules provide that non-cooperation constitutes misconduct, it may be assessed together with the underlying conduct and, in serious cases, may support disciplinary action or termination. Refusal to co-operate does not prevent escalation in matters involving significant compliance, safety or legal risks. 3.3 Format Interviews in HR internal investigations may be con - ducted remotely, such as via Teams or Zoom, pro - vided that such methods are permitted under duly implemented company policies.
3. Interviews and Fact-Finding 3.1 Interviewees
In HR internal investigations, interviewees are typi - cally selected from individuals directly involved in the alleged conduct and those with relevant knowledge through reporting, decision-making or oversight func - tions. Investigations usually begin with the employee concerned and may extend to managers, colleagues
107 CHAMBERS.COM
Powered by FlippingBook