CHILE Law and Practice Contributed by: Christian Alvarado and Agustín Alcalde, Clyde & Co Chile
but does not prohibit recording as a complementary tool, provided its purpose is to ensure the accuracy of the testimony. If an interview is recorded, a transcript should be produced and made available to the inter - viewee for review, correction or amendment, which is an irrevocable right. In remote investigations, the absence of recording can be ensured through clear instructions to the parties and rules established in the internal procedure. 3.11 Other Fact-Finding In addition to interviews, an internal investigation may use other fact-finding and evidence-preservation measures, such as reviewing physical and digital doc - uments, emails, access logs, IT systems, and informa - tion storage and custody protocols and assessing the relevance of each measure on a case-by-case basis. Early preservation steps are key to preventing altera - tion, concealment, or destruction of evidence through internal instructions and appropriate access controls. In all cases, investigative steps that infringe funda - mental rights (such as privacy, mental integrity or dignity) may not be used and any fact-finding activ - ity must be lawful, proportionate, and respectful of constitutional guarantees. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter The employer must and may take measures to protect the reporter during an internal investigation, based on the general duty of protection and, in cases of work - place harassment, sexual harassment or workplace violence, in accordance with the Karin Act. Such measures must aim to prevent re-victimisation or secondary victimisation, safeguarding the reporter’s physical and psychological integrity, as well as their personality rights. Under the Karin Act, the employer must adopt immedi - ate protective measures, taking into account the seri - ousness of the allegations and the working conditions. These may include separation of physical spaces, adjustments to working time, remote work arrange - ments and early psychological support through the
relevant workers’ compensation insurance entity. Such measures may be modified throughout the investigation and are subject to review by the Labour Authority. Failure to adopt appropriate measures may result in administrative and judicial liability, while protective actions must comply with the principle of proportionality. In addition, the reporter benefits from anti-retaliation (indemnity) protection, and any retalia - tory conduct may give rise to labour protection claims. 4.2 Protection of the Respondent The employer may and should adopt measures to pro - tect the respondent during an internal investigation, particularly regarding their honour, privacy and per - sonality rights, based on the general duty of protection under Article 184 of the Labour Code, the principle of due process and the confidentiality requirements applicable to labour investigations, including those regulated by the Karin Act. Typical measures include strict confidentiality safeguards, restricted access to information, limited internal communications and impartial treatment throughout the procedure. Failure to adopt such measures may expose the employer to claims for violation of fundamental rights, while any protective measures must be proportionate and must not amount to anticipated sanctions or unduly affect the respondent. 4.3 Measures Against the Respondent As a general rule, the employer should not impose disciplinary measures before concluding the internal investigation, as doing so could undermine impartial - ity, due process and fundamental rights. Within the framework of the Karin Act, only preventive, propor - tionate and non-punitive protective measures are allowed (such as separation of workspaces, redistri - bution of working time or remote work), taking into account the seriousness of the allegations and the protection of the persons involved. Imposing sanc - tions prematurely may give rise to labour protection claims or employer liability; conversely, failing to adopt protective measures when they were necessary may also result in liability. 4.4 Protection of Other Employees The employer must and may adopt measures to pro - tect other employees when the situation under inves - tigation may affect their safety, health or rights, pursu -
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