INTRODUCTION Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
• what to do when a complaint is received and/or problematic behaviour is observed, and the steps to take immediately with respect to initial commu - nications with the relevant stakeholders; • how to deal with a complaint of a criminal nature; • whether or not to conduct a full or partial investiga - tion, or indeed whether to conduct one at all; and • when to involve outside counsel in the matter. Employers also seek advice about proactive measures to take before a problem arises, such as the drafting of an internal policy related to HR internal investigations. These are not innocuous questions, as, depending on the jurisdiction, the employer inadvertently could create more obligations for itself. Against this background, this HR Internal Investiga - tions edition of Chambers’ Global Practice Guides addresses from start to finish what employers are to do when faced with such situations, with a general focus on: • when to open an HR internal investigation; • how to balance requirements to protect both the reporter and respondent, as well as other employ - ees throughout the entirety of the process; • practical advice on the carrying out of the HR inter - nal investigation; and • specific information regarding internal policies. The Guide covers multiple jurisdictions – many of which do not have specific statutes governing inter - nal investigations, and which may rely on case law or internal policy – each with very different rules and practices when it comes to procedures and the pro - tection of employees. It is therefore divided into eight general sections, in which contributors can write freely about the laws and practices relevant in their jurisdic - tion. More specifically, procedural requirements in different jurisdictions are examined, along with the standard of proof. The role and importance of internal organi - sational policies are also explored. In addition to the legal framework applicable in each jurisdiction cov - ered in this global overview, these sections also cover how to deal with the stumbling blocks that arise most frequently in practice.
Key themes can be observed across jurisdictions, revolving around the interview protocols and other fact-finding procedures, confidentiality and the sup - port that reporters and respondents can expect or request to receive. Of importance is the protection of all parties during the course of an investigation, balancing interests and rights and the practical steps to be taken in this regard, as well as potential conse - quences of the manner in which the employer handles the matter. Once an internal investigation comes to a close, par - ties should be aware of the manner in which the com - munication of the outcome and interactions with the relevant stakeholders should be handled. Therefore, this Guide discusses in detail transparency require - ments and the consequences of violating these. In some jurisdictions, beyond simply addressing the immediate outcomes for the so-called reporter and respondent, the post-investigation period is used to address harm, foster accountability and rebuild trust. Given the increasingly mobile world in which we live, employers also should keep in mind that internal investigations spanning multiple jurisdictions often have specific considerations. In particular, each juris - diction may have its own substantive and procedural laws. In this context, terms like whistle-blowing, bul - lying/mobbing and discrimination have different defi - nitions depending on the jurisdiction, and an allega - tion that is potentially criminal in one place may not be elsewhere. Employers carrying out cross-border investigations should also consider data protection, rules around the use of AI and the safeguarding of confidential information, as well as the rights of all stakeholders who may not speak the same language.
7 CHAMBERS.COM
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