FINLAND Law and Practice Contributed by: Anu Waaralinna, Jukka Paloheimo, Oskari Lindholm and Elmiira Kutvonen, Roschier
1.6 Prohibition on Carrying Out an HR Internal Investigation It is usually impossible to verify the accuracy of an HR-related allegation without some degree of inves - tigation. However, if the employer is able to directly ascertain whether the allegations are true, a more extensive HR internal investigation may not be neces - sary. It should be noted that a request from the person making the allegation to not conduct an investigation does not affect the employer’s obligation to do so. In some cases, it may be necessary to delay or pause an investigation due to health issues of participating individuals. However, an employee’s sick leave is not in itself a reason to postpone or pause the investiga - tion. The employee’s ability to participate despite sick leave must be determined on a case-by-case basis. 1.7 Other Cases In cases where an investigation is neither obliged nor prohibited, the employer should act in accordance with the employer’s internal policies and guidelines, and ensure a sufficient case-by-case assessment. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent There is no specific legislation addressing whether the reporter and/or respondent should be informed of the potential initiation of an internal HR investiga - tion. There are also no specific requirements regarding the information to be provided or the deadlines for giving it. However, the recommended starting point is that the relevant parties should be informed appropri - ately and sufficiently. The parties have no right to be informed of possible disciplinary measures imposed on the other party. 2.2 Communication to Authorities As a rule, the employer is under no obligation to inform the authorities of the opening of an HR internal inves - tigation. However, in the event that the Finnish Super - visory Agency (FSA) requests clarification on whether a certain employee has been subjected to bullying or harassment, or has experienced similar issues, the employer should inform the FSA that an internal inves -
tigation has been initiated. The FSA respects this and will therefore not pursue the matter further, at least for the time being. Otherwise, it is not a requirement to inform the authorities of the opening an internal investigation. 2.3 Confidentiality Agreements and NDAs In the event of an internal investigation, the parties involved may be requested to sign a non-disclosure agreement (NDA). However, this is usually unnecessary if the individuals are employees of the organisation that is conducting the investigation. If an individual (for example, a witness) is not employed by the employer where the investigation is taking place, it is customary to require an NDA. With regard to employees working in the same organisation, the general confidentiality and loyalty obligations based on legislation and/or the employees’ employment agreements apply. In most cases, no separate NDA or other confidentiality agree - ment is required when the investigation specifically concerns HR matters and relates to the employment/ service relationship under Finnish law. 2.4 Preliminary Investigation and Scope- Setting Although it is possible to conduct a preliminary inves - tigation to determine whether a full HR internal inves - tigation is necessary, based on the firm’s experience, this is quite rare. It is imperative that the scope of the investigation be examined and determined at the outset of every investigation. Following a preliminary investigation, if it is determined that a full investigation is not required based on the available evidence, the employer can decide not to proceed with any further investigation.
3. Interviews and Fact-Finding 3.1 Interviewees
The person(s) making the allegations and the person(s) to whom the allegations relate are typically interviewed in the course of an HR internal investigation. Possible witnesses are also interviewed. During the investigation, any party may suggest that certain persons should be interviewed as witnesses. The investigator may decide whether interviewing
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