CHILE Law and Practice Contributed by: Christian Alvarado and Agustín Alcalde, Clyde & Co Chile
ant to the general duty of protection. Such measures may include: • separating physical workspaces; • redistributing working hours; • enabling remote work; or • other preventive and proportionate actions. Failure to adopt protective measures may give rise to employer liability for breach of the duty of protection, while adopting such measures must be carried out with caution to avoid infringing fundamental rights or amounting to disguised disciplinary sanctions, there - by avoiding the risk of litigation or fundamental rights claims. 5. Procedural Requirements and Proof 5.1 Requirements In general terms, any internal investigation must be conducted in accordance with the principles of: • legality;
On this general basis, the Regulation implementing the Karin Act expressly provides that investigations into sexual harassment, workplace harassment, and workplace violence must strictly adhere to the follow - ing principles, which apply throughout the entire pro - cedure, as outlined below. Gender Perspective This principle requires that, throughout the entire pro - cedure, potential gender-based discrimination affect - ing the exercise of rights or access to opportunities be duly considered. Its objective is to promote gender equality in the workplace, ensuring equal treatment and equal opportunities in employment and occupa - This principle recognises the right of all participants to be treated equally, without arbitrary distinctions, exclusions or preferences based on grounds such as sex, age, marital status, religion, political opinion, sex - ual orientation, gender identity, personal appearance, social origin or any other similar factor. It also requires special consideration of situations of vulnerability or multiple discrimination, which may exacerbate condi - tions of inequality affecting a worker. Non-Revictimisation or Avoidance of Secondary Victimisation tional development. Non-Discrimination This principle imposes a duty on those receiving com - plaints and conducting the investigation to prevent the affected person from experiencing renewed harm or additional emotional or psychological distress as a result of participating in the procedure. Accordingly, effective protective measures must be put in place to prevent secondary victimisation. Confidentiality obliges all participants to safeguard access to and disclosure of the information obtained during the investigation. In particular, the employer must maintain strict confidentiality over all personal data accessed by virtue of the employment relationship, in accord - ance with Article 154-ter of the Labour Code. Disclo - sure is permitted only exceptionally, where required by courts or by the Labour Board in the exercise of their legal powers.
• impartiality; • objectivity; • presumption of innocence; • factual accuracy; • respect for the individuals involved; • proper documentation; • confidentiality; • protection against retaliation; and • good faith.
This requires that the procedure be previously regu - lated in the company’s internal policies, ensuring that: • investigators act independently, without conflicts of interest and with sufficient competence; • the parties be heard and allowed to submit evi - dence; • the investigation is based on verifiable facts rather than mere opinions; • all actions be duly documented; and • the fundamental rights, privacy, and physical and psychological integrity of the participants are safe - guarded, avoiding retaliation or arbitrary treatment.
86 CHAMBERS.COM
Powered by FlippingBook