FINLAND Trends and Developments Contributed by: Anu Waaralinna, Jukka Paloheimo, Oskari Lindholm and Elmiira Kutvonen, Roschier
prior notification and annual reporting to the Data Pro - tection Ombudsman). This creates a significant practical problem: many HR investigations involve allegations that would naturally require reviewing employee emails or other electronic communications. However, such review done by the employer proactively accessing emails is generally prohibited under Finnish law. Regarding internal HR investigations, however, the parties involved are usu - ally more than willing to provide emails and/or other materials to support their view. The limited role of employee consent The Act on the Protection of Privacy in Working Life imposes strict rules on the retrieval and access of employees’ emails. It limits the investigative measures that can be employed in internal investigations and prohibits the blanket monitoring of emails. Employ - ee emails may only be processed under exceptional circumstances, and then only if the content is work- related and the mandatory procedure is followed. In the context of internal investigations, consent from an employee for the processing of their confidential electronic communications, such as emails, is often the only way to process these communications. How - ever, consent is generally only feasible in very limited scenarios due to mandatory legal provisions and the inherent power imbalance between employees and employers. Even if an employee provides consent, exceptions to the necessity requirement under the Act on the Protection of Privacy in Working Life are not possible. This severely restricts what companies can do dur - ing internal investigations. For example, an employee under investigation may refuse to consent to their emails being reviewed, which would effectively block a key investigative avenue. Even if consent is given, courts may later question its validity due to the inher - ent power imbalance in the employment relationship. Criminal investigations and their implications An internal HR investigation should always be con - sidered as the preferred option when investigating alleged misconduct in the workplace. In cases where criminal activity is suspected and the threshold for
investigation has been met, the processing of employ - ees’ confidential electronic communications may be necessary and permitted during preliminary investi - gations led by a competent authority (ie, the police). This creates a paradoxical situation: in cases involv - ing serious misconduct that might constitute a crime, employers may need to report the matter to the police in order to enable a proper investigation. However, the police investigation would then be subject to different rules, which could potentially allow access to elec - tronic communications that the employer itself could not lawfully review. However, this approach carries significant risks. Once a criminal investigation begins, the employer loses control over the process and its timing. The inves - tigation becomes public at certain stages, which could cause reputational harm. Furthermore, not all misconduct constitutes criminal activity that would justify police involvement, and some police investi - gations do not result in charges being brought. Police involvement is usually considered the preferred way to proceed in situations involving elements of suspected breaches and/or misuse of business secrets. Practical considerations for conducting HR investigations Planning and scope At the outset of an internal investigation, it is com - mon to prepare an investigation plan in connection with defining the investigation’s purpose and scope. A clearly defined purpose and scope serve as help - ful reference points during the investigation, enabling progress to be monitored. However, the purpose and scope may change to reflect facts and findings that emerge as the investigation proceeds. Ideally, the investigation plan should also set out the division of responsibilities (both internally and for external counsel and other consultants that may be engaged), reporting lines and the steps to be taken during the investigation. The investigative steps usually involve interviews with individuals such as whistle-blowers, witnesses and the person about whom the allegations have been made, as well as document review. A final conclusion report is usually produced, and this may be preceded
143 CHAMBERS.COM
Powered by FlippingBook