CHILE Law and Practice Contributed by: Christian Alvarado and Agustín Alcalde, Clyde & Co Chile
1. Opening an HR Internal Investigation 1.1 Circumstances In general terms, an internal investigation within a company is initiated when there are grounds to col - lect sufficient information to assess the organisation’s proper functioning and to clarify potential improper conduct occurring within it. This includes situations where it is presumed that an individual or group of individuals may have committed a breach in the per - formance of their duties, as well as the need to deter - mine the scope and seriousness of such conduct. Internal investigations may arise both from infringe - ments of the legal framework and from facts that, with - out necessarily constituting criminal offences, breach the company’s internal standards, rules or policies. They may also be initiated when poor practices previ - ously unidentified in risk management processes are detected, or when it is necessary to assess the effec - tiveness of compliance programmes, with the aim of preventing or mitigating legal, operational, economic, or reputational consequences for the organisation. Notably, in the Chilean labour context, opening an internal investigation becomes a legal obligation, not merely a discretionary action, in cases regulated by Law No 21,643 (the “Karin Act”). This law requires employers to investigate complaints of workplace har - assment, sexual harassment and workplace violence in accordance with the applicable legal framework. 1.2 Bases Historically, Chilean law has not provided a general and systematic framework imposing a cross-cutting obligation to carry out internal investigations in either the labour or corporate context. In general terms, internal investigations have been grounded in the employer’s discretionary powers, derived from the need to collect sufficient information to assess the proper functioning of the organisation, clarify improper conduct, and prevent or mitigate legal, operational and reputational risks. In this context, internal investi - gations have been linked to compliance programmes, internal regulations and models for the prevention of crime, particularly in the criminal sphere, where inter - nal investigations constitute a relevant tool for risk detection and for assessing the effectiveness of such
models, without criminal legislation establishing a specific labour investigation procedure. In the labour context, prior to the entry into force of the Karin Act, there were limited obligations relating to sexual harassment, mainly through the Internal Reg - ulations on Order, Hygiene and Safety, which were required to set out duties, prohibitions and discipli - nary measures, as well as general guidelines for the handling of such complaints. However, these require - ments did not constitute a uniform or detailed statu - tory procedure for internal investigations, leaving the employer with a broad margin of discretion. This situation changes with the entry into force of the Karin Act, which amends the Labour Code and expressly imposes on employers the obligation to investigate complaints relating to workplace harass - ment, sexual harassment and violence at work, estab - lishing for the first time a structured internal investiga - tion procedure with minimum stages, timeframes and rules, or alternatively the option to refer the matter to the Labour Board. In these cases, the investigation ceases to be merely discretionary and becomes a legal duty, and the decision to initiate the investigation or to refer the matter to the administrative authority must be communicated to the reporter within the applicable timeframe. Outside these specific scenarios, internal investigations continue to operate primarily as a per - mitted and recommended tool from a preventive, risk- management and compliance perspective. In addition to domestic sources, the legal basis of the Karin Act is directly linked to international labour standards, in particular Convention No 190 of the International Labour Organization (ILO) and Recom - mendation No 206, both adopted in 2019 and ratified by Chile in June 2023, entering into force on 12 June 2024. These international instruments constitute the normative foundation of the current Chilean frame - work on workplace harassment, sexual harassment and violence at work. ILO Convention No 190 introduces several core ele - ments that are reflected in Chilean law, including:
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