JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
5. Procedural Requirements and Proof 5.1 Requirements There are no procedural guarantees that must be established, nor steps that must be followed in HR internal investigations in Japan. However, at the begin - ning of the interviews, it is advisable for the interviewer to explain the matters mentioned in 3.7 Information . 5.2 Internal Regulations The employer may have internal regulations regarding an HR internal investigation. In some cases, there are stipulations in relation to the investigation, such as: • an obligation to follow instructions of the employer and the supervisor (including the investigation); • an obligation to return company-issued items (eg, laptop, mobile phone); • consent to inspection of emails issued by the employer; and • an obligation to work from home if instructed (throughout the investigation). However, as detailed rules and descriptions will bind the employer and limit flexible treatment, the company In judicial practice, the party seeking a specific out - come bears the burden of proof. There are no specific rules regarding the burden of proof for an HR inter - nal investigation, but the investigation team generally bears the burden of proof and should substantiate the allegations and the subject of the investigation. If the investigation team establishes a prima facie case, the burden of proof may shift, at least partially, to the other party (eg, the obligation to provide a legitimate reason or provide an alibi). It is generally accepted that the “balance of probabilities” serves as the standard of proof in civil cases, whereas “beyond any reasonable doubt” is employed in criminal cases. When the employer takes action based on the inves - tigation findings, the investigator should carefully consider the degree of proof required using a stand - ard closer to “beyond any reasonable doubt”. On the other hand, if the report’s sole purpose is for manage - rial decision-making, the investigator should apply a tends not to specify further details. 5.3 Burden and Degree of Proof
standard closer to the “balance of probabilities” while endeavouring to incorporate the maximum number of facts into the report. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no rules governing when an HR internal investigation can be ended. Typically, an HR internal investigation concludes when the team has found suf - ficient evidence to close the case or when it deter - mines that it is unable to gather sufficient evidence. 6.2 Procedure for Ending an HR Internal Investigation There are no specific procedures to follow when deciding to close an HR internal investigation. Howev - er, especially in the case of a written whistle-blowing report, it is necessary to notify the whistle-blower of the outcome of the response to the report succinctly. It is also common practice to share this information with the relevant party, such as the victim. With regard to whistle-blowing reports, as mentioned in 2.1 Com- munication to the Reporter and the Respondent , it is recommended that the employer informs the whistle- blower if it decides not to initiate an investigation at an early stage. 6.3 Conclusion There are no specific rules on the form that the con - clusion must take, but it is common practice for the investigation team to submit the investigation report to the HR department or the board of directors. If a listed company carries out an investigation, it may disclose the report or its summary through a press release. Fur - thermore, if the results of the investigation are related to government regulation, the employer may contact the relevant authority with the corrective and preven - tative measures. If the investigation committee wishes to comply with the “Third-Party Committee Guidelines for Corporate Scandals” issued by the Japan Federa - tion of Bar Associations, the draft of the investigation report should not be disclosed to the client before the report is finalised.
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