CHINA Law and Practice Contributed by: Yang Cheng, Songshan Liu, Yan Yu and Weina Wang, Lantai Law Firm
should therefore align with evidentiary maturity, inter - nal rules and procedural compliance. 4.4 Protection of Other Employees Where an internal investigation creates foreseeable risks to other employees, employers may, and in some cases must, take protective measures before the investigation is concluded, based on their duty to provide a safe workplace and prevent foreseeable harm under PRC law. In practice, employers may adopt proportionate pre - ventative measures such as the following: • separating individuals; • adjusting work arrangements; • suspending sensitive access or authority; or • issuing no-contact instructions. Such measures must be protective rather than puni - tive and should not amount to disguised disciplinary action or unlawful changes to employment terms. Failure to take reasonable protective measures despite known risks may expose employers to liability, while excessive or improper measures may be found unlaw - ful. Employers must therefore balance timely risk pre - vention with legality and proportionality. 5. Procedural Requirements and Proof 5.1 Requirements PRC law does not impose a uniform set of procedural guarantees on HR internal investigations comparable to administrative or criminal proceedings. Internal investigations are exercises of managerial authority, and employees do not enjoy statutory rights such as silence or mandatory legal counsel. However, inves - tigations must comply with certain mandatory proce - dural requirements, failing which disciplinary action or termination may be invalidated. At a minimum: • internal rules relied upon must be lawfully adopted, democratically consulted where required, and properly disclosed;
• employees’ personality and reputation rights must be respected, and unverified allegations must not be treated as established facts; • where unilateral termination is contemplated, the trade union must be notified and its opinions con - sidered; and • evidence must be lawfully obtained, without coer - cion or unlawful data access. Failure to meet these procedural requirements may lead to civil liability, administrative consequences or adverse outcomes in labour disputes, making proce - dural compliance a prerequisite for enforceable inves - tigation outcomes. 5.2 Internal Regulations Employers may adopt internal regulations that impose standards exceeding statutory minimums, provided they do not conflict with PRC law, administrative regu - lations or mandatory labour standards. Where such rules directly affect employees’ interests, they must comply with democratic consultation and disclosure requirements to be legally effective. Substantively, internal rules may tighten conduct or compliance requirements but may not reduce statu - tory protections or override labour or collective con - tracts. Once lawfully adopted and communicated, internal regulations are binding on both parties, and employers must comply with their own proce - dures when investigating, disciplining or terminating employees. Failure to follow self-imposed internal rules may ren - der disciplinary action or termination unlawful, even where misconduct is established, effectively raising the employer’s own compliance threshold. 5.3 Burden and Degree of Proof In HR internal investigations and subsequent labour dispute proceedings, the general principle of “he who asserts must prove” applies. In practice, where the relevant facts, evidence or records are under the employer’s management or control, the evidentiary burden primarily rests with the employer, and failure to produce such evidence may result in adverse con - sequences.
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