SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
nal investigation to investigate the situation, taking measures during the investigation to protect employ - ees pending an outcome and taking the necessary disciplinary measures following the outcome of the HR internal investigation. 8.4 Criminal Cases When the allegations are criminal in nature, co-ordi - nation with the public prosecutor may be necessary. In particular, if a criminal complaint has been filed, co-ordination with the public prosecutor is advisable. The public prosecutor may require that the employer hold off on conducting an HR internal investigation, or even of informing the respondent of the allegations, until after it has finished its own investigation. Further, in the event of certain criminal allegations, other authorities may need to be informed (eg, money laundering, securities’ fraud) (see 2.2 Communication to Authorities and 6.6 Communications to Authori- ties ). Moreover, allegations of a criminal nature often involve behaviour that could create a high risk to an employ - ee’s health and/or safety, meaning immediate action may be needed. 8.5 Multi-Jurisdictional HR Internal Investigations It is important first to determine the different jurisdic - tions implicated in the case at hand (ie, where the parties work, where the incident occurred, where the company is located, etc), and the law potentially applicable to each component (eg, the law governing the employment agreement with each party, criminal law applicable in the jurisdiction where the incident occurred, etc).
Employers should bear in mind that laws may vary from one jurisdiction to another. For instance, some - thing that is legal in one jurisdiction may be illegal in another. Other protections might also exist – for instance, other jurisdictions may have more protection against specific types of discrimination, or a different definition of discrimination. Further, the governing law of the employment agree - ment may affect the disciplinary measures that the employer may take; in particular, different jurisdictions often have different rules about the conditions for ter - minating an employee. Moreover, multi-jurisdictional internal investigations typically involve cross-border transfer of personal data, so attention should be paid to ensuring the applicable data protection law is followed. Against this background, after determining the poten - tially implicated jurisdictions, it is recommended that employers consult local counsel in these jurisdictions.
393 CHAMBERS.COM
Powered by FlippingBook