SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
a break or come back another day with a support per - son. Additionally, depending on the circumstances, the lack of participation may be taken into account in the outcome of the investigation. Moreover, in some instances, the employer could take disciplinary meas - ures against a current employee (ie, for refusal to com - ply with an employer’s directives). However, this will depend on the nature of the situation. 3.9 Minutes Minutes of interviews should be taken. Generally, this may be done in the form of a summary which the interviewee may review and add any points they forgot in a separate section at the end. Interviewees are not required to sign the minutes, and in some instances this might not be desired (eg, to increase the chance of them being considered notes, rather than part of the HR internal investigation that needs to be shared). 3.10 Recording It is not prohibited to record interviews and, in princi - ple, it may be possible to record interviews and tran - scribe them. That said, the need to record the inter - views would have to be proportionate to the need to respect the interviewees’ personal data and the inter - viewee should be informed of, and consent to, the recording. Therefore, in practice, it is suggested not to record interviews, especially as doing so is often more time-consuming and complicated. 3.11 Other Fact-Finding Typically, interviewees are invited to provide any other documents or information they have that they think might be relevant. Very often, they will provide items likes emails and performance reviews. The employer may access employees’ emails; it gen - erally is permissible to access employees’ email, pro - vided this is limited to business-related emails (ie, the employer refrains from reading emails marked “pri - vate” or stops doing so if an email seems private). That said, typically, it is accepted that employers also may access private emails, provided they have a legit -
imate interest for doing so (eg, suspicion of criminal activity). If pertinent, the employer may also obtain logs (eg, when the employee entered and exited the premises). 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter The employer must protect the reporter. This is part of the general statutory duty to protect employees’ personality rights. In this context, in particular, the employer might need to take measures to protect the reporter’s physical safety and/or psychological well - being (see 1.2 Bases ). Depending on the nature of the allegations, the employer might also have a duty to protect the report - er from gender-based discrimination and/or violence, under the Gender Equality Act. Any measures taken must be proportional – the employer must balance its obligations towards all its employees. In this context, typical measures during the HR internal investigation might include making organisational changes (ie, team structure), having the respondent work remotely or suspending the respond - ent during the investigation. Any such measures must be proportional and not violate the employer’s obliga - tions vis-à-vis the respondent (see 4.2 Protection of the Respondent ). In any case, when there may be serious risks to an employee’s safety, the employer should, at least, make sure the reporter is not in the same physical space as the respondent. If the reporter felt the employer failed to protect them, notably, they could bring a lawsuit for violation of Article 328 of the Swiss Code of Obliga - tions. In certain cases, the reporter could bring a discrimina - tion claim under the Gender Equality Act. The reporter could also file a claim with the public labour authori - ties for a violation under the Labour Act.
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