SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
6.5 Information Absent an internal policy, there is no specific right to information regarding the outcome of the HR internal investigation. When there is an internal policy, employees may be able to rely upon this to request access to such infor - mation. However, it should be noted that in any case, employees should be treated equally: an internal poli - cy requiring that certain information be provided to the reporter, but not the respondent, could be problematic from a Swiss employment law perspective. In practice, the decision on whether to share an HR internal investigation report will often depend on the specifics of the case at hand – in particular, whether doing so is more likely to escalate or de-escalate the situation. Therefore, flexible internal policies are rec - ommended in this respect. Moreover, depending on the content of the report, cer - tain parties may be able to request access, or partial access, on the basis of data protection laws (see 7.3 Access ). Parties may be able to request that a judge order the report to be turned over in the context of future civil proceedings (eg, for abusive termination). 6.6 Communications to Authorities 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 nec - essary to notify other authorities, especially financial authorities (ie, Swiss Financial Market Supervisory Authority FINMA). 6.7 Other Communications In general, the conclusion of the HR internal investi - gation is not communicated to other parties (eg, wit - nesses) or other employees who were not involved directly (eg, team members). However, when an internal investigation turns up large-scale problems, it may be desirable to provide certain information to a wider audience (ie, an investi - gation was concluded and found systematic problems
in team X; the company is putting in place the follow - ing measures…). 6.8 Disciplinary Measures Depending on the allegation, the following disciplinary measures are often considered: • informal warning; • formal written warning; • formal written warning, with commitments; • termination; and • termination with immediate effect. Attention must be paid to the personality rights of all parties, as well as the company’s culture and environ - ment, when deciding on the appropriate measure to take. Special care should be taken in cases where termina - tion is considered; for less serious violations, it is also possible to provide a warning (or warning with formal commitments) and terminate the employee later on if the situation arises again in the future. Extra special care must be taken with regard to ter - mination with immediate effect since, as noted in 4.3 Measures Against the Respondent , there must be cause, which is interpreted restrictively on a case- by-case basis. Further, immediate termination must be taken within a few days of having knowledge of the cause, otherwise there is not considered to be an irrevocable breakdown of trust. With respect to HR internal investigations, typically, the issuance of the report is when the employer is considered to have knowledge of the cause, not when the allegation is made. If an employer is not sure whether there is cause, but also does not want the respondent in the workplace, another option is ordinary termination with garden leave. 6.9 Other Measures In addition to disciplinary measures, an employer may choose to take organisational measures (eg, mediated discussions, team reassignments, etc). These may be independent of, or in conjunction with, disciplinary measures.
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