SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
3.7 Information As noted in 3.6 Support Person and/or Lawyer , in 2024, the Swiss Federal Supreme Court specifically ruled that respondents do not need to be given proce - dural guarantees equivalent to those given in criminal proceedings, meaning there is no specific list of infor - mation that must be given to interviewees. That said, if there is an internal policy in place that states that specific information must be provided, generally, that policy should be followed. Absent such a policy, it is suggested that before starting with the interview questions, the interviewee should be: • thanked for being there and for their co-operation; • reminded of the context in which the interview is being carried out (ie, an HR internal investigation); • reminded of confidentiality obligations and of the non-retaliation policies; • told that they are not required to answer any ques - tions, but that this could be taken into considera - tion in the context of the outcome of the internal investigation; • informed that minutes will be taken and that they will be asked to sign the minutes, as the case may be, after the interview; • told a report will be drafted as part of the internal investigation; and • asked to confirm that they are participating freely and voluntarily in the interview. After the interview, it is suggested that the interviewee should be thanked again and reminded of their confi - dentiality obligations. 3.8 Stopping the Interview If an interviewee requests to stop the interview, it should be stopped, as the employer cannot forcibly compel someone to participate. It should be clarified whether the interviewee is asking to take a break or stop for the day, or whether the interviewee is refusing to participate further. In particular, with respect to cases pertaining to alle - gations of especially sensitive or traumatic situations, the individual may be asked if they would like to take
However, depending on the nature of the allegations, it may be advisable to have one interviewer who shares the protected characteristic (eg, someone who is the same gender as the reporter for allegations concern - ing gender-based discrimination and/or violence). 3.5 Neutral Party In some situations, notably for matters that could be the subject of future proceedings, it may be advisable to have a neutral third party, who can vouch that future witnesses were not “influenced” in any manner. 3.6 Support Person and/or Lawyer Interviewees may be accompanied to the interview by a support person, but there is no such inherent right. In some cases, especially those concerning sensi - tive allegations such as discrimination and violence, it could be seen as a protection of personality rights to allow the interviewee to be accompanied by a sup - port person. Further, pragmatically speaking, in such cases, doing so may facilitate the interview process. Interviewees may be accompanied to the interview by a lawyer, but again, there is no such inherent right. Moreover, in 2024, the Swiss Federal Supreme Court specifically ruled that respondents do not need to be given procedural guarantees equivalent to those given in criminal proceedings (Decision 4A_368/2023 of 19 January 2024). Again, if there is an internal policy stating that inter - viewees may be accompanied by a lawyer, it is recom - mended that the policy be followed, although, as not - ed in the 2024 decision, the Swiss Federal Supreme Court ruled that the termination in question was not abusive despite the internal policy not having been entirely followed. In practice, if an interviewee asks for a lawyer, the first step is to check the internal policy. If no such requirement exists in the internal policy, it should not be mandatory to allow the interviewee to be accom - panied by a lawyer. In this case, it is suggested to decide whether or not to allow the individual to be accompanied by a lawyer based on the situation and the people involved, as allowing the interviewee to be accompanied by a lawyer could de-escalate or further escalate the situation.
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