SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
5. Procedural Requirements and Proof 5.1 Requirements There is no fixed list of procedural requirements to follow during an HR internal investigation. According to the previously mentioned 2024 decision of the Swiss Federal Supreme Court, the employer is only required to carry out the clarifications needed, based on the circumstances of the case. 5.2 Internal Regulations An employer may have an internal policy that goes beyond their statutory obligations (but not which exempts them from carrying out statutory obligations). When such a policy exists, in principle, it is this policy that must be followed, even with respect to elements going above and beyond any legal obligation. There - fore, careful drafting is important. That said, as noted in 3.6 Support Person and/or Lawyer , the Swiss Federal Supreme Court ruled the termination in question was not abusive, despite the internal policy not having been followed entirely. In this context, the consequences of not following an internal policy should be examined on a case-by-case basis by the courts to see whether sufficient clarity was obtained or not. 5.3 Burden and Degree of Proof The allegation of the reporter should be substantiated. That said, the reporter is not required to supply all the evidence – the employer can, and should, gather evidence as part of the HR internal investigation (eg, interviews, requesting documents from other parties, etc). As noted in 3.6 Support Person and/or Lawyer , the Swiss Federal Supreme Court has said that criminal law standards do not apply and the employer must simply carry out the clarifications needed, based on the circumstances of the case. In this context, when the employer, based on the information at its disposal, has reasonable suspicion that the allegation can be upheld, it may take measures on this basis, including termination.
6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation There are no specific rules as to the moment at which an HR internal investigation is to be ended. As men - tioned in 2.4 Preliminary Investigation and Scope- Setting , in some instances it may even be possible to conclude after a preliminary investigation. In any case, in order to protect the personality rights of all parties, especially the respondent, the investigation will be concluded as soon as the employer has been able to carry out the clarifications needed. 6.2 Procedure for Ending an HR Internal Investigation There are no specific procedures for how to wind down an HR internal investigation. However, an employer may have an internal policy providing for There is no rule per se governing how the procedure should be concluded (eg, a report is drafted). Howev - er, in order to be able to demonstrate that the allega - tions were thoroughly investigated and that the nec - essary clarifications were carried out, a written form (ordinarily used in practice) is strongly recommended. 6.4 Reports When a report is drafted, there are no specific rules regarding its form. In practice, such reports usually contain: • background information about the allegation; • information about the methodology; • a summary of the fact finding, in particular the interviews; and • a conclusion. When prepared by outside counsel, they may contain information about the next steps that the employer lawfully may consider taking. such a procedure. 6.3 Conclusion
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