SWITZERLAND Trends and Developments Contributed by: Anna Neukom Chaney, Julien Boulter, Rolf Schuler and Marco S. Meier, Binder Legal
Binder Legal KLG Sihlstrasse 24 8001 Zürich Switzerland Tel: +41 58 404 40 00 Email: mail@binderlegal.ch Web: www.binderlegal.ch
Ongoing Importance of HR Internal Investigations The number of HR internal investigations in Switzer - land remains high after a significant increase over the past years. The reason for the increase was predomi - nantly the increased awareness of sexual harassment or misconduct in all industries following the global #MeToo movement and of employers’ duties to pro - tect not only the physical, but also the mental health of their employees (eg, by protecting them from mobbing and burnouts). This increased awareness remains undiminished, keeping the spotlight on the issue of how an HR internal investigation must or, in the absence of bind - ing rules, should be conducted so that the opposing rights and interests of the stakeholders involved are adequately protected. No Specific Legal Framework Neither a specific law nor legal provisions specifically govern HR internal investigations. Consequently, case law is key. Previously, there were great uncertainties as to whether courts would hold any of the existing procedural laws (civil or criminal) against an employer and, if so, to what extent. Some legal scholars went so far as to argue that employees must be granted the same or even stricter procedural guarantees as the accused in criminal investigations (at least when serious accusations are brought forward), while others rejected the notion of any procedural rules applying. Fortunately, the Federal Supreme Court, in a landmark decision dated 19 January 2024, brought an end to this ongoing discussion. The case concerned an HR internal investigation into accusations of sexual harassment which confirmed a reasonable suspi -
cion of the suspected behaviour and, therefore, led the employer to ordinarily (by observing the notice period) terminate the employment relationship with the accused employee. The employee contested the termination and argued that he had not been able to defend himself against the accusations and that the termination, therefore, was abusive. The Federal Supreme Court (FSC) overturned the appellate court’s decision, which accepted the employee’s claim, and ruled that employers are not obliged to grant employees the criminal procedural guarantees when conducting an internal investigation. In addition to this fundamental clarification, the land - mark decision contains the following key takeaways. • Employers are not required to inform the accused employee of the subject or purpose of an interview in advance. Rather, it is sufficient if the employee is informed accordingly at the beginning of the interview. • Employers are not required to allow the accused employee to be accompanied to an interview by a person of trust, even if there are internal guidelines in place that give the employee this right. • The accused employee is neither entitled to be informed about the identity of the accuser nor to be given a detailed description of the allegations brought forward. Rather, it is sufficient to provide anonymised and generic information, as long it allows the accused to understand the core of the allegations. • Employers are not required to establish the truth of allegations before proceeding with an ordinary termination and otherwise risking a court deem - ing the termination to be abusive because it was
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