JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
ever, there is no clear distinction between a prelimi - nary investigation and a full HR internal investigation. Therefore, it is common practice for the investigator to begin the preliminary fact-finding process at an early stage and then expand the scope of the investigation based on the results of the fact-finding process.
appropriateness of the methods of investigation or allegations of harassment (and also to prevent disa - greements over what was said), interviews will not be conducted by a single person, so as to maintain numerical superiority. When selecting interviewers, the employer should consider factors such as the nature of the case and the gender and objectivity of the interviewers, as well as the age difference between interviewers and the interviewee, in order to ensure a smooth interview process. 3.5 Neutral Party Normally, there are no instances in which a neutral third party should be present during an interview. If a third party is present and comments on the questions and/or answers, the results of the interview and the interviewee’s memory may be distorted or severely impaired; therefore, it is recommended that third par - ties do not observe the interview. 3.6 Support Person and/or Lawyer If the victim requests the attendance of a support per - son, and such attendance is deemed unavoidable, the employer should consider accepting such request. However, support persons should typically not be permitted to attend the interview, and the employer maintains the discretion to deny their presence. If a support person accompanies the victim at the inter - view and comments on the questions and/or answers, there is a risk that the results of the interview and the interviewee’s memory may be distorted or severely impaired (as described in 3.5 Neutral Party ). Further - more, it will be difficult to impose the duty of confiden - tiality on the support person, if such a person attends and know the confidential information. The same principle applies to lawyers. Although the interviewee can request the presence of their lawyers, they do not have the right to be accompanied by their lawyers, and the company may refuse the presence of a lawyer based on its managerial authority over the workplace and its authority to conduct the investiga - tion. However, in practice, refusing a lawyer’s attend - ance could adversely affect negotiations. Therefore, companies may consider allowing the lawyer to
3. Interviews and Fact-Finding 3.1 Interviewees
The type and number of interviewees will depend on the nature and factual basis of the case. Typically, an employer will interview a reporter, a victim, a witness
and a perpetrator. 3.2 Participation
An employer may request or order employees to par - ticipate in the interview and to sincerely co-operate with the investigation, based on the employment con - tract or the Work Rules. However, an employer should be sensitive to the feelings and mental health of the interviewees, especially with regard to the victim. 3.3 Format The interview can be conducted remotely or face-to- face. However, given the possibility of interviewees refusing to answer questions in an online environ - ment, the risk of secret recordings and the advantage of being able to observe the interviewee’s attitude and behaviour more effectively, face-to-face interviews are preferable, especially when interviewing important individuals. 3.4 Interviewers In Japan, there are no specific rules regarding the number of interviewers in HR internal investigations. However, regarding the recommendation of resigna - tion, the Supreme Court has ruled that repeated inter - views after a clear rejection by several interviewers are considered an act of tort against the employee (Supreme Court judgment of 10 July 1980, Employee v Shimonoseki City , Shu-Min No 130, p131.). In view of this ruling, it is advisable for there to be two or three interviewers; one will be the chief interviewer and the rest will take minutes. In the case of hostile interviewees in particular, to avoid disputes over the
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