JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
ited, in order to handle the confidential information properly; and • taking into account the possibility of secret record - ings when making statements. 3.11 Other Fact-Finding In addition to interviews, the investigator must exam - ine objective evidence and the relevant documents and internal communications. Based on the precedent case law (Tokyo District Court judgment of 26 February 2002, Roudou Hanrei Vol 826, p50, Employee v Nikkei Quick ), the employer may review company account email communications during the internal investiga - tion. The employer may also instruct the employee to submit the company-issued laptop and mobile phone for analysis by a third-party forensic service vendor. However, the employer should be careful not to violate privacy unrelated to the investigation, and any com - munication through a private email address cannot be accessed even if the communication was through the employer’s laptop or mobile phone. Moreover, the employee’s locked locker and desk cannot be forcibly opened without their consent. It rarely happens, but the employer can request Pres - ervation of Evidence (Article 234 of the Code of Civil Procedure) in order to preserve the necessary evi - dence. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter An employer may (and should) take action to protect the reporter, based on the reporter’s wishes. Typically, the employer may take HR measures, including per - missions and/or instructions for the victim and/or the perpetrator, relocation and transfer. If the employer fails to take appropriate measures and the employees suffer damage caused by such fail - ure, the employer will be legally liable as it has a duty of care towards its employees based on Article 5 of the Labour Contracts Act. In the case of the whistle- blowing in particular, the employer must take meas - ures to ensure that the whistle-blower will not suffer
any disadvantages because of the report. At the same time, the employer should be mindful that such action may inadvertently reveal specific information about the victim and the whistle-blower. 4.2 Protection of the Respondent The employer may take action to protect the respond - ent, if the employer deems such action necessary based on its duty of care to its employees. By way of example, the investigation team should be care - ful not to engage in inappropriate behaviour, includ - ing coercion, duress, threats, fraud and harm to the respondent’s human rights and health. However, excessive protective measures may create the per - ception that the employer is attempting to cover up the matter, support the perpetrator and/or overprotect the respondent. 4.3 Measures Against the Respondent The employer does not usually take disciplinary action against the respondent before the conclusion of an HR internal investigation. Overlapping disciplinary action for the same misconduct is prohibited and the court will invalidate such action (Article 15 of the Labour Contracts Act); therefore, the employer usually awaits the conclusion of an HR internal investigation. If nec - essary and there is clear evidence of legal violations or breaches of the Work Rules, the employer may take HR measures – including a warning letter, instruction notice, demotion, relocation or transfer – with regard to the respondent in order to prevent further miscon - duct, which is different from disciplinary action. 4.4 Protection of Other Employees As the employer has a duty of care to its employees based on Article 5 of the Labour Contracts Act, the employer may (and should) take measures to protect other employees if it is foreseeable that they may suf - fer harm. By way of example, in the case of harass - ment, the employer may take HR measures (including a warning letter, instruction notice, demotion, reloca - tion or transfer) with regard to the respondent. If the employer fails to take appropriate measures and – the employees suffer damage due to such failure, the employer will be legally liable. On the other hand, the person subject to such action can argue that such action is invalid owing to an abuse of rights (Article 3, paragraph 5 of the Labour Contracts Act).
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