SWITZERLAND Trends and Developments Contributed by: Anna Neukom Chaney, Julien Boulter, Rolf Schuler and Marco S. Meier, Binder Legal
proceedings, even if the employee was not informed of their right against self-incrimination. Due to their duty of loyalty towards their employer, employees are required to provide truthful and complete information during internal investigations. And although they are not under threat of criminal sanctions for non-coop - eration, they may face employment-related sanctions, including an immediate termination for good cause, if they refuse to co-operate. Therefore, even though an employer is not a governmental administrative body like FINMA, until case law provides further clarifica - tion, employers should carefully assess whether it is in their own best interests for self-incriminating state - ments obtained from employees to be admissible in subsequent criminal proceedings and consider this when deciding whether to inform employees of their right against self-incrimination prior to conducting interviews. The Importance of Internal Guidelines and Rules Although the FSC’s landmark decision provided much-needed clarification as to which procedural rules or guarantees do not apply, there are still no rules in place for employers to follow when conducting an internal investigation to ensure that a subsequent termination based on a confirmed suspicion will not be deemed abusive by a court. Further, there is often not enough time to prepare ade - quate guidelines on how to conduct an HR internal investigation when the necessity arises. In absence of such guidelines, employers must rely on outside counsel to guide them through the process, which, while effective, is costly. Alternatively, they can risk making avoidable mistakes that may not only lead to financial but also reputational damage – especially in today’s social media-driven world. Therefore, employers are increasingly implementing internal rules or guidelines on how to conduct an inter - nal investigation to be prepared when the time comes and ensure that relevant personnel are aware of key principles and common mistakes. Further, employ - ers are increasingly emphasising their dedication to protecting their employee’s physical and mental well- being by implementing codes of conduct to prevent any misconduct from happening in the first place and taking measures to ensure that alleged victims are
heard and protected (if necessary) and the allegations are brought to the attention of the competent person or body. The comprehensiveness of such rules or guidelines varies greatly. The general trend is towards quite detailed rules or guidelines that cover the following topics: • designating a point of contact for employees to report misconduct and the person (or body) who shall conduct the subsequent internal investigation; • defining misconduct that shall lead to an internal investigation; • specifying the employer’s rights to access the employees’ mailboxes; • setting out procedural rules or general principles that shall apply; • listing possible measures and sanctions; and • setting out rules and expectations of the employer regarding the behaviour of employees and their compliance with applicable laws and regulations as well as internal rules and guidelines (so-called code of conduct). The Scope of Attorney–Client Privilege In two decisions dated 6 August 2024, the FSC provid - ed critical clarification on the applicability and scope of attorney–client privilege in connection with internal investigation reports by outside counsel. Previously, multiple decisions of the FSC had created uncertainty in this regard and been interpreted as the FSC’s case law moving towards the exclusion of internal investi - gation reports from the scope of attorney–client privi - lege. The underlying question was whether conducting an internal investigation and drafting a report with fac - tual findings and a legal assessment of these facts constitutes an activity typical for attorneys (such as representing clients before courts and providing legal advice) and, thus, falls within the scope of attorney– client privilege. The opposing argument was that this activity may and often is performed by others, eg forensic consultants not covered by the lawyer’s monopoly.
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