MEXICO Law and Practice Contributed by: José Luis Diaz Badial, Jose Luis Diaz Castañeda and Mario Ivan Peña Padilla, Martinez y de Labra Abogados
3. Interviews and Fact-Finding 3.1 Interviewees
2.2 Communication to Authorities There are circumstances in which the results of an internal HR investigation are required to be reported to the authorities. This is specifically the case when the findings indicate the commission of a crime or a seri - ous administrative offence. The obligation to report arises when the investigated conduct goes beyond a mere violation of internal company policies. The kind of crime or the offence committed will deter - mine which authority is responsible for handling the case. 2.3 Confidentiality Agreements and NDAs Companies can usually ask people involved in an HR internal investigation to sign an NDA. These agree - ments are voluntary, and no one can be forced to sign them. However, if a NDA is not signed, everyone is expect - ed to keep the investigation confidential in order to protect the integrity of the process, as it may involve sensitive matters or personal data. In addition, the privacy of everyone involved in the investigation must be safeguarded and participants are expected to co-operate in the process honestly. If confidential data is disclosed, there are legal rem - edies (civil and/or criminal) to penalise the disclosure of that information if it causes harm to the parties, individuals or organisations. 2.4 Preliminary Investigation and Scope- Setting It is possible and common, and generally recommend - ed, for HR to conduct a preliminary assessment or investigation before launching a full, formal one. This allows them to establish whether there are grounds to proceed with a more in-depth investigation and determine whether any sanctions are warranted for the offender.
During an HR internal investigation, it is a standard practice to interview the whistle-blower, the accused and any other individuals with knowledge of the facts under investigation. This may also include the superi - ors of those involved, if they have relevant information. The number of people interviewed varies depending on the specific circumstances of each case, in order to establish the facts. 3.2 Participation The interviewee cannot be compelled to participate in the investigation, but the employer may make a determination based on the information available. The employer also has the right to document this refusal and ascertain the reasons for it. If the interviewee decides to participate, they must participate in the entire investigation, not just partially or in certain aspects of the investigation. 3.3 Format The interviews for an internal HR investigation can be conducted remotely via Zoom, Microsoft Teams or other video conferencing platforms. However, it is important to note that interviews are preferably con - ducted in person and only remotely in exceptional cases. 3.4 Interviewers There are no strict rules regarding the number or char - acteristics of the interviewers. However, they should be someone authorised by the company to conduct interviews and, ideally, be a member of the HR depart - ment. In terms of the size of the investigative team, it is rec - ommended that only one person leads the procedure, but a larger number of participants is not prohibited. 3.5 Neutral Party It is a common practice to have a neutral person pre - sent during an internal HR investigation, often referred to as an “impartial third party” or “observer”. Depend - ing on the severity of the situation and internal poli -
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