SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
1. Opening an HR Internal Investigation 1.1 Circumstances Typically, an HR internal investigation is opened after receiving information that could indicate that there is a problem, in particular, unlawful activity (eg, discrim - ination, harassment, mobbing and/bullying (see 8.3 Other Forms of Discrimination and/or Harassment Including Bullying and/or Mobbing ), as well as viola - tions of internal policies. These problems may involve employees with the same rank or supervisors/super - visees. This could take the form of a complaint, a call to a whistle-blower hotline, an employee’s exit interview, etc. In practice, internal investigations are opened most frequently following a complaint. This may be made to a supervisor, HR, etc. Complaints also could be made to a dedicated hotline (if the employer has one). When an employer has an internal policy related to investigations, the employer then would need to follow the internal policy, as this creates obligations going beyond the statutory ones. An employer also might learn of the circumstances giving rise to an HR internal investigation at the end of the employment relationship: for instance, the employee might never have made a complaint, but then list an incident as a reason for leaving. Less frequently, an HR internal investigation also could be opened based on observations made by the employer (eg, a manager or supervisor). 1.2 Bases The carrying out of an HR internal investigation is not founded upon any specific legal provision. Rather, it is based on case law regarding the steps that employers must take to fulfil their obligations with respect to ensuring that employees are appropriately protected when there is reason to suspect that this might not be the case.
In particular, these obligations are founded on the fol - lowing. • Article 328 of the Swiss Code of Obligations (pri - vate law) – the obligation to protect the personality rights of employees, which includes: (a) health (physical and mental); (b) dignity; and (c) privacy and private life. • Article 6 paragraph 1 of the Employment Act and Article 2 of the Ordinance 3 on the Employment Act (public law) – the obligation to protect the health (physical and mental) of employees. • The Gender Equality Act – protection against gender-based discrimination. Moreover, although it is not a legal requirement, in practice some employers have an internal policy relat - ed to internal investigations, containing a process for filing a complaint and carrying out the internal investi - gation. Whereas it can be good to have some general rules in place regarding internal investigations, care should be paid to not have internal policies that are too restrictive (eg, requiring that a full internal investi - gation be conducted any time a complaint, however minor, is made, or fixing an untenable timeframe in which to conduct the internal investigation). 1.3 Communication Channels There are no specific requirements with respect to communication channels and there is no requirement that they be anonymous. That said, there should be some way for employees to make complaints. As noted under 1.1 Circumstances , in practice, this can be to a supervisor, HR etc, or to a dedicated hotline. Moreover, this procedure may be detailed in an internal policy. However, again, attention should be paid to not create excessively strict obliga - tions when drafting such a policy. Further, as part of the general obligation to protect employees, every effort should be made to respect the confidentiality of all parties involved and not share the complaint further than necessary. However, generally, it is not advisable to guarantee anonymity, as the employer may not be able to keep
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