SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
4.2 Protection of the Respondent The employer must protect the respondent. Again, this is part of the general statutory duty to protect employ - ees’ personality rights (see 1.2 Bases ). In this context, in particular, the employer might need to take measures to protect the respondent’s reputa - tion and psychological well-being. Typical measures during the HR internal investigation might include reminding investigation participants of their confiden - tiality obligations. The allegations should be kept con - fidential, the measures taken to protect the reporter and/or other employees (see 4.1 Protection of the Reporter and 4.4 Protection of Other Employees ) should not be disproportionate and proper procedures should be followed when conducting the HR internal investigation. Again, the employer needs to balance its obligations towards all its employees. If the respondent felt the employer failed to protect them, notably, they could also bring a lawsuit for violation of Article 328 of the Swiss Code of Obligations. If the employment of the respondent is terminated fol - lowing the internal investigation, it is also possible that they could use their treatment during the HR internal investigation to claim abusive termination under Arti - cle 336 of the Swiss Code of Obligations, which can result in the awarding of damages of up to an amount equivalent to six months’ salary. 4.3 Measures Against the Respondent In addition to the precautionary measures that may be taken during the internal investigation (see 4.2 Protec- tion of the Respondent ), some employers may want to take disciplinary action prior to the conclusion of the internal investigation, especially termination and immediate termination for cause (Article 337 et seq of the Swiss Code of Obligations). In the case of termination at this juncture, the respond - ent again could claim abusive termination under Arti - cle 336 of the Swiss Code of Obligations. In the case of immediate termination for cause, the respondent could claim there was not cause. In this case the employee is entitled to damages in the
amount they would have earned had the employment relationship ended after the required notice period or on expiry of its agreed duration, as well as additional damages of up to an amount equivalent to six months’ salary. The courts examine whether there was good cause on a case-by-case basis, but, in general, there must be an irrevocable breakdown of trust between the parties (eg, serious breach of contract or criminal behaviour). That said, it should be noted that the employer’s deci - sion may retroactively be validated (ie, if, after con - cluding, the internal investigation shows there was cause), but this approach has risks for the employer if the HR internal investigation does not find cause. 4.4 Protection of Other Employees The employer must also protect other employees, again based on the general statutory duty to protect employees’ personality rights (see 1.2 Bases ). Depending on the nature of the allegation, the employ - er might also have a duty to protect other employees based on the Gender Equality Act (ie, in the event of allegations of gender-based discrimination and/or violence). This is part of the employer’s balancing of its obligations towards all its employees and should be part of the equation when deciding whether to take measures against the respondent during the investi - gation. Common measures that protect other employees also include having the respondent work remotely or sus - pending the respondent during the HR internal inves - tigation. In any case, when there may be serious risks to an employee’s safety, the employer should, at least, make sure the employee is not in the same physical space as the respondent. If other employees felt the employer failed to protect them, notably, they could bring a lawsuit for violation of Article 328 of the Swiss Code of Obligations. In certain cases, they could also bring a discrimination claim under the Gender Equality Act or file a claim with the public labour authorities for a violation of the Labour Act.
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