INTRODUCTION Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
HR Internal Investigations: A General Overview An HR internal investigation is a formal inquiry con - ducted when an employer is confronted with reasons to suspect that there may have been potential viola - tions of the law or internal policies (eg, that an employ - ee is being bullied). It is an important tool that permits the employer to demonstrate that it respects its legal obligations vis-à-vis its employees. Given the large amount of time spent in the workplace and increasingly blurrier lines between the profession - al and personal, combined with the hierarchical power dynamics inherent in employment, it should come as no surprise that employers receive many complaints about potentially problematic workplace-related incidents, ranging from kindergarten-style disputes between colleagues to allegations of serious criminal violations. In recent years, there seems to have been a marked uptick in formal complaints. On the one hand, between the post-COVID-19 return to working in the same space as other people and growing societal polarisa - tion, rather than speaking with their colleagues, more employees are turning to formal complaints as a way to deal with small annoyances. On the other hand, the spotlight that social movements like #MeToo and Black Lives Matter shone on the discrimination, harassment, bullying and sexist and sexual violence experienced by many people led to more employees feeling empowered to file complaints. In light of the legal and reputational consequences for employers and the potential mental and physical health and safety risks to employees, employers need to pay special consideration to how complaints are treated and how HR investigations are conducted. In many jurisdictions, employers have certain obliga - tions to protect employees. Typically, this may include a duty to protect employees’ personality rights, including their health and safety. In some jurisdic - tions, this may be further nuanced (ie, protection for whistle-blowers, protection against certain forms of discrimination, etc). Frequently, these obligations are not codified in one place. They may have numerous sources, such as private employment law and public labour law (international and domestic). Many employ -
ers also may have internal policies with requirements that go beyond the statutory ones. In addition, adja - cent fields like data protection may come into play and rules around the use of AI are becoming increas - ingly important, given the substantial role AI now plays in internal investigations, especially at the document review stage. Often these laws and rules contain provisions (either directly or indirectly) about HR internal investigations – in particular, when to carry one out and how to do so. Concretely, this means that when an employer receives a complaint, they need to know whether it triggers a legal obligation to protect their employees and, if so, the extent of these obligations. This may encompass both protecting the employee(s) directly subject to the behaviour in question (eg, bully - ing) and protecting other employees from a potential risk of also being subject to such behaviour, as well as protecting the person against whom the complaint was made from false allegations and rumours. As HR internal investigations allow employers to establish the facts necessary to determine the veracity of the com - plaint and whether any measures need to be taken, they not only protect the person who made the com - plaint (ie, the reporter), but also the person against whom the complaint was made (ie, the respondent). Such situations may be very complicated for employ - ers, especially in the absence of specific legal provi - sions and given the need to act quickly, and they may have many legal and practical questions. Initially, an employer will need to determine whether an HR internal investigation should be opened, when to turn to external counsel, what to communicate to the different parties and/or the authorities, and when to do so, etc). Moreover, pragmatically speaking, the employer will need to determine the specifics of how the investi - gation will be conducted (eg, who actually conducts the interview, whether the interview can be conducted remotely, whether transcripts, recordings and min - utes are required, etc). For instance, in opening an HR internal investigation, employers will need to be aware of:
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