MEXICO Law and Practice Contributed by: José Luis Diaz Badial, Jose Luis Diaz Castañeda and Mario Ivan Peña Padilla, Martinez y de Labra Abogados
5. Procedural Requirements and Proof 5.1 Requirements Although internal HR investigations in Mexico are not judicial processes, they must adhere to the principles of due process in order to guarantee employees’ legal rights. This has been confirmed by the precedents of the Inter-American Court of Human Rights, which extends these guarantees to administrative and labour proceedings. Companies must establish and follow a clear proce - dure that respects the following essential guarantees and steps: • the right to a hearing and defence; • information about the accusations; • access to information or evidence; • legal assistance (optional internally, but crucial if it results in dismissal or legal action); • the right to remain silent; • the presumption of innocence; and • impartiality. 5.2 Internal Regulations Employers can formalise internal regulations through an RIT, which is a valid and fundamental element of internal HR investigations in Mexico. These internal regulations are a legal and legitimate tool that employers can and should use while con - ducting an internal HR procedure to ensure compli - ance with the organisation’s policies. However, if these regulations are not adhered to dur - ing an investigation and an employee is dismissed, there is a risk that a labour authority will deem the dismissal to be unjustified, with the corresponding legal consequences. 5.3 Burden and Degree of Proof In an internal HR procedure, the burden of proof usu - ally falls on the party making the allegation. However, there are important nuances, and the required level of proof is generally flexible, seeking internal conviction rather than strict legal standards.
tect workers and prevent workplace risks is a funda - mental principle. It is common practice to separate the accused from the whistle-blower’s work area to prevent confronta - tion or further victimisation of the whistle-blower. 4.2 Protection of the Respondent During an internal HR investigation, especially in cases of harassment or violence, the employer must take protective measures to safeguard the well-being of all individuals involved (including the accused/ alleged perpetrator). However, these measures must be precautionary, proportionate and temporary, and must respect due process and the defendant’s labour rights. If the employer fails to comply with this obligation, the affected party may assert their rights before the relevant civil or criminal authorities for breach of con - fidentiality or damage to their reputation. 4.3 Measures Against the Respondent In general, it is not recommended that an employer take formal disciplinary action, such as dismissal, before concluding an internal HR investigation. Tak - ing disciplinary action based solely on allegations or suspicions, without first establishing the facts, sig - nificantly increases the risk that the action will be deemed unfair or improper in an employment tribunal. The fundamental principle is that employees have the right to due process and the opportunity to present their version of events before any sanction is finalised. Conducting a reasonable and sufficient investigation is a crucial step in ensuring a fair procedure. 4.4 Protection of Other Employees During an internal HR investigation, the employer must take all necessary measures to protect the lives, safety and well-being of all workers, not just those involved in the procedure. This is a mandatory obliga - tion, not optional. Failure to comply with these obligations may result in legal liability for the employer, whether for actions (eg, authorising an act of harassment) or omissions (eg, failing to take the necessary measures to prevent it).
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