SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
internal investigation may be opened/whether the par - ties may be informed. In some instances, the reporter and/or respond - ent also may be able to request certain information under data protection law (subject access request), although, again, the employer may be able to refuse to provide information by invoking an exception (eg, overriding interest of a third party). In any case, if the reporter or respondent is inter - viewed, they will be informed, at the latest, at that moment. 2.2 Communication to Authorities First, when the allegations are criminal in nature, it is advisable to contact the competent criminal authori - ties to see whether an HR internal investigation may be opened and, if so, with what limits. Moreover, depending on the nature of the allegations and/or the status of the employer (eg, listed company, subject to financial regulatory authorities, etc), it may be necessary to notify other authorities about the opening of the investigation. 2.3 Confidentiality Agreements and NDAs Parties may be asked to sign additional agreements, provided that they have adequate carve outs to report illegal activity and reply to requests from authorities and courts. In practice, it is increasingly less common to ask par - ties to sign separate agreements, especially NDAs. For parties bound by an employment agreement, Swiss statutory law provides additional protection: it stipulates that an employee must not exploit or reveal confidential information obtained while in the employ - er’s service, even after the end of the employment relationship, to the extent required to safeguard the employer’s legitimate interests. 2.4 Preliminary Investigation and Scope- Setting In some instances, an employer may first conduct a preliminary investigation and then decide whether or not to conduct a full HR internal investigation. Pro -
vided that there is not an internal policy stipulating otherwise, this may be done, in so far as the employer can ensure that its obligations vis-à-vis its employees are respected. 3. Interviews and Fact-Finding 3.1 Interviewees At a minimum, the reporter and respondent ordinarily are interviewed. Typically, a few witnesses may also be interviewed. There is no specific number of witnesses to interview; witnesses should be interviewed to the extent that they may have evidence that can allow the allegation to be substantiated or not substantiated, but without unnecessarily dragging on the HR internal investiga - tion. 3.2 Participation Provided that the interviewee is an employee, par - ticipating in the interview may be considered part of the employee’s general statutory duty to comply with instructions from the employer. That said, this request cannot infringe upon the employer’s obligation to pro - tect personality rights, etc. Moreover, the employer remains a private party, who cannot “compel” an indi - vidual to participate the way state authorities could. 3.3 Format Provided there is no internal policy stating otherwise, interviews may be carried out remotely (eg, Teams, Zoom, etc). In practice, the interviewer is often given the option to request that the interview be carried out in person (within the limits of feasibility). When interviews are conducted remotely, other proce - dural rules remain unchanged and it is still important to have at least two interviewers (see 3.4 Interview- ers ). 3.4 Interviewers The recommendation is to have at least two interview - ers, so there is a witness. Absent an internal policy, there are no specific rules with respect to who should conduct the interviews.
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