JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
ceives. This decision is usually a matter of business judgement. However, if the risk relates to a violation of the law, an employer must carry out an investiga - tion promptly. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Generally, the reporter and the respondent do not have the right to be informed of whether an HR inter - nal investigation will be initiated. It is standard practice not to notify the respondent, as it is often considered inappropriate to allow the respondent to infer that a report has been filed. There are no specific requirements regarding the notice period and the information to be provided to the reporter. With respect to the respondent, when disciplinary action is anticipated, it is procedurally desirable to give the respondent an opportunity to present an explanation and disclose the reason of expected disciplinary action. Such procedures are often stipulated in the company’s Work Rules. How - ever, it is advisable not to disclose the existence and the details of the report, as it creates the potential for retaliation. On the other hand, when an employer receives a whistle-blowing report, it is recommended that the employer informs the whistle-blower of whether an internal investigation will be initiated. If 20 days have passed since the date of the whistle-blowing report and no notice of an investigation has been provided or an investigation is not initiated without a legitimate reason, the whistle-blower will be able to make a whistle-blowing report to third parties, such as mass media (Article 3, Item 3 of the Whistle-Blower Protec - tion Act). Under the government guidelines, it is considered desirable to report both the commencement and the progress of the investigation. After the end of the investigation, an employer will report the result of the investigation, and the report should be simple and succinct. In contrast, with respect to the respondent, in cases where merely communicating the existence
of a whistle-blowing report would lead to the identi - fication of the whistle-blower, such notification must not be disclosed to the third party without just cause (Article 12 of the Whistle-Blower Protection Act). Moreover, disclosing information to the respondent
may constitute a violation of the law. 2.2 Communication to Authorities
In the event of leakage of certain types of personal information, the employer must report to the Person - al Information Protection Commission in accordance with Act No 57 of 2003 (the “Act on the Protection of Personal Information”). In addition, a government official must report to the authorities if they suspect that a crime has been committed (Article 239, para - graph 2 of Act No 131 of 1948 – the “Code of Criminal Procedure”). In general, however, there are no situations in which the initiation of an HR internal investigation must be reported to the authorities. Nevertheless, there are some cases in which the employer may decide to report the matter to the authorities (eg, the regula - tory authorities, the police and the public prosecutor’s office), when such report will be advantageous to the employer’s position and beneficial to the case. 2.3 Confidentiality Agreements and NDAs Typically, an employer does not require the relevant party to sign confidentiality agreements and/or non- disclosure agreements (NDAs) for an HR internal investigation. However, it is common practice for the employer to stipulate a confidentiality clause in an employment contract and in the Work Rules. The employer must also instruct the relevant party not to disclose any information related to the investiga - tion, with the warning that a breach of confidentiality will result in a breach of contract and be subject to disciplinary action. For investigations in cases of whis - tle-blowing, it is common practice for the employer to require the investigator to sign an NDA at the time of appointment. 2.4 Preliminary Investigation and Scope- Setting In Japan, it is possible to conduct a preliminary inves - tigation before a full HR internal investigation. How -
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