SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
such a promise (eg, data subject request, court order, etc). If the employer wants to emphasise respect of anonymity, it is suggested that this only be guaranteed “to the extent possible”. Additionally, other general rules apply regarding com - munication channels that an employer must have in place, but these are general (ie, not with respect to HR internal investigations specifically); in particular, the Swiss Federal Supreme Court has stated that employ - ers should appoint a person of trust (internal or exter - nal), with whom employees can discuss workplace issues in a fully confidential and anonymous manner. 1.4 Responsibility There are no specific rules covering who should be responsible for carrying out a HR internal investiga - tion; it may be conducted internally or by external counsel. This, too, is something that may be detailed in an internal policy – but again, attention should be paid to the wording of any such policy to avoid it being too restrictive. In practice, when an HR internal investigation is con - ducted internally, often the HR or compliance depart - ment is responsible for carrying it out. In any case, in order to guarantee the objectivity of the investiga - tion and the protection of the individuals involved, the individuals carrying it out should not be in the direct reporting line of the participants. Further, outside counsel may be brought in to carry out the internal investigation. Typically, this is the case when the person under investigation is very senior (eg, an executive manager), when the topic is particularly sensitive and/or criminal in nature or when there is a high risk of reputational damage (especially for listed companies). 1.5 Obligation to Carry Out an HR Internal Investigation In some instances, an HR internal investigation must be carried out as part of the employer’s general duty to protect the employee. This is the case when the allegation involves potentially unlawful behaviour (eg, discrimination, harassment, bullying or mobbing). In such situations, conducting an internal investigation
can be considered part of an employer’s obligation to protect employees’ personality rights (see 1.2 Bases ). 1.6 Prohibition on Carrying Out an HR Internal Investigation In some instances, it might not be possible to carry out an HR internal investigation, or it might be neces - sary to wait to carry one out. In particular, when the allegations are potentially criminal in nature, the competent criminal authorities (eg, the public prosecutor) may forbid the employer from carrying out an HR internal investigation until their own investigation has been concluded (see 8.4 Criminal Cases ). 1.7 Other Cases First, an employer may need to conduct an HR internal investigation when not strictly legally required, due to its own internal policies. Moreover, an employer may choose to conduct an HR internal investigation in other instances, even though neither legally necessary nor specifically dictated by its own internal policies, due to its general culture or values, or for reputational reasons. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent From an employment/labour law perspective, there are no specific rules with respect to communicating the opening of the HR internal investigation to the reporter or the respondent, in so far as the legal limit of protecting employee personality rights is respected (which also includes the rights of the respondent). However, employers often have internal policies that go beyond the legal limits. In such instances, in prin - ciple, the internal policies should be followed. Typically, the employer may inform both the reporter and the respondent. That said, when the HR internal investigation concerns criminal matters, the criminal authorities should be consulted to see whether an HR
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