FINLAND Trends and Developments Contributed by: Anu Waaralinna, Jukka Paloheimo, Oskari Lindholm and Elmiira Kutvonen, Roschier
“inappropriate behaviour”, reports can often be linked to Section 28 of the Occupational Safety and Health Act (OHSA). According to this section, if an employee is subjected to harassment or other inappropriate treatment at work that is harmful or dangerous to their health, the employer must, upon becoming aware of the matter, take measures to remedy the situation using the means at their disposal. This often imposes an obligation to investigate – ie, employers must take measures to investigate the mat - ter if they become aware of a suspicion or allegation of inappropriate behaviour. In addition, the Occupational Safety and Health Authority (ie, the Finnish Supervi - sory Agency) refers to Section 28 of the OHSA when investigating reported alleged inappropriate behaviour directed at an employee. Section 28 of the OHSA is significant to all employers. If an employer remains passive after receiving infor - mation on alleged harassment – ie, does not initiate an investigation, this passivity may lead to criminal charges, in which case a work safety offence under Chapter 47, Section 1 of the Criminal Code will be considered. In such a case, the employer may also be subject to corporate fines. As a result, employers take reports that come to their attention seriously, and initiating an internal investigation can be considered the general rule. Balancing investigation needs with employee rights The Finnish Employment Contracts Act always requires a proper reason for dismissal, and mere suspicion of misconduct does not justify this. Unless misconduct is particularly egregious, the employee must be given a warning, which serves as an opportunity to correct their behaviour, before the employment relationship can be terminated. This creates a challenging situa - tion for employers: they must investigate thoroughly to establish facts. Proven harassment and inappro - priate behaviour may be grounds for termination of employment, but the employer cannot take adverse employment action based solely on suspicion. HR investigations are rarely conducted in cases of poor performance or other types of employee misconduct or breaches not covered by Section 28 of the OHSA.
Internal investigations are often guided by the employ - er’s own policies and internal operating guidelines. During the investigation, all parties involved, includ - ing the reporter and the person who is the subject of the report, must be treated equally. No unfavourable measures may be taken against the reporter solely because they have reported alleged harassment. Section 16 of the Non-Discrimination Act specifically states that a person may not be treated unfavourably or in a manner that causes negative consequences for them because they have invoked the rights or obliga - tions provided for in this Act, participated in an inves - tigation of a matter concerning discrimination or taken other measures to ensure equality. This has been spe - cifically stated as a prohibited ground for termination of employment in the Finnish Employment Contracts Act (55/2001). It should be noted that releasing a person suspect - ed of misconduct from their work obligations for the duration of the investigation is not considered a pro - hibited countermeasure. However, such a measure should always be considered carefully. Data protection – the greatest challenge for HR investigations The confidentiality of electronic communications The Electronic Communications Services Act’s provi - sions on the confidentiality of electronic communica - tions extend to those of employees. Even commu - nications concerning an employee’s work duties are confidential when addressed to the employee only. This may pose challenges during internal investiga - tions due to restrictions on accessing the content or traffic data of employee communications. The Electronic Communications Services Act allows employers to process their employees’ electronic communications primarily to ensure information security (subject to strict limitations, primarily with only certain automatic and manual measures allowed in exceptional circumstances), to detect technical faults or transmission errors (including the process - ing of traffic data such as telephone numbers, email addresses and IP addresses) or to detect, prevent or investigate misuse of the communications service or network (covering traffic data only and subject to extremely strict conditions and procedures, including
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