Global investigations: what employers need to know about investigating employees

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1 Global investigations: what employers need to know about investigating employees

2 Plan carefully to minimise riskbe su Given increasing globalisation, multinational companies are facing new levels of risk. A typical multinational business now operates within a complex matrix of jurisdictions and political and legal regimes, each of which will present its own challenges and risks. Analysing, pre empting and dealing with risks and threats both at local and global level have become critical aspects of modern management. Any misconduct or breach of rules or regulations starts with the people in a business. How they act, what culture the business has established and what processes are in place to deal with misconduct are at the centre of any business s risk management. The internal investigation process, whether local or across several jurisdictions, has therefore become an increasingly important risk management tool for multinational employers. When conducting an investigation, whether in response to regulatory inquiries or to concerns that have been raised internally, companies owe obligations as an employer to the employees implicated in an investigation. Minimising risk during an investigation depends on careful planning at the outset to address the key employment steps of the investigation process in the light of the relevant legal requirements, cultural expectations, best practices and the company s internal policies and procedures. This brochure gives you a general overview of the guidance we can offer across the world to ensure compliance with appropriate employment obligations, best practice and your company s own policies and procedures through all stages of the investigation process. It also gives a sense of the possible differences between the jurisdictions and how these differences may impact upon how an investigation is conducted. 3 Freshfields Bruckhaus Deringer LLP

3 Helping you to understand the key employmentrelated issues in any investigation Key decisions you will need to make: Who will lead the investigation internally? Which departments need to be involved eg human resources (HR), legal, compliance, internal audit? Will the investigation be protected by legal privilege? Is there a whistleblower? How to retrieve and gather documents? Will personal data be involved? Will personal data need to be transferred across jurisdictions? Will you need to suspend any employees? What do you need to say to employees who are interviewed? Will you need to consider applying any disciplinary sanctions? Global investigations: what employers need to know about investigating employees

4 Identify who will lead the investigation and who else should feed into the process The first step in any internal investigation is to identify early on who will take responsibility for leading and/or conducting it. In the case of any investigation that may lead to a disciplinary process, it is also necessary to think ahead to identify a credible, untainted decision maker. Depending on the nature of the allegations and the scope of the investigation, it should either be conducted internally (as appropriate, by members of the HR, legal or compliance departments or members of the board of directors or related committee eg audit or management committee) or by external counsel. Under certain circumstances and depending on the local legal regime, the organisation may be required to assign the supervision, or the conduct of the investigation, to a particular body, such as the board s audit committee or another committee composed of independent directors. If management appears to be involved in the conduct at issue, assigning the investigation to a board committee may be the only viable option. It is advisable to secure the co-operation of representatives of HR, legal and compliance from the start to ensure the investigation s smooth running and to obtain a complete strategic overview of the potential scope of legal issues to be addressed (eg whether civil, regulatory and/or criminal liabilities may be triggered and, if so, to what extent they will effectively be enforced). At every stage of the investigation, the employer s position in relation to the employee(s) should be carefully reviewed to ensure that it is not prejudiced (or is prejudiced to the least extent possible) and time limits for applying disciplinary actions are not missed. In France, for instance, the employer should bear in mind that it must initiate the disciplinary process within two months of becoming aware of the employee s misconduct. HR should therefore remain closely involved in the process, advising and guiding on compliance with employment obligations and the company s policies and procedures. Consideration should also be given to the extent of support and guidance needed from external legal counsel because the result, and even the conduct, of an investigation usually amounts to information of a sensitive nature and may need to be kept confidential. 2 Freshfields Bruckhaus Deringer LLP

5 Consider whether the investigation will be done on a privileged or open basis It is critical to explore at the outset whether the investigation will be conducted on a privileged (ie legally confidential) basis. This will generally depend on the purpose of the investigation. If a privileged investigation is started, it is likely that external counsel may need to be involved at an early stage to structure and conduct the investigation carefully in an effort to protect privilege over its outcome, keeping in mind that there is significant variation in how legal privilege is applied in different jurisdictions. Any investigation that is not carefully structured and carried out on a privileged basis will lead to open documentation, such as interview notes, being recorded at an early stage. Any investigation report would also be on the record. There will always be a tension between the privileged nature of the original investigation and the need at a later date to instigate a disciplinary process against any employee, which process will necessarily involve the creation of disclosable documentation in any future employee or third party litigation. Global investigations: what employers need to know about investigating employees 3

6 Identify when an employee has blown the whistle and assess the employment obligations Where concerns have been raised within an organisation about suspected wrongdoing or malpractice by a whistleblower and an investigation is undertaken, the first step is to determine whether the disclosure triggers specific whistleblowing legislation (for instance, it would in the UK and the US). If so, it is important to identify the duties that may be owed by the employer to both the whistleblower and any employee who has been/will be implicated (and, in return, the duties that may be owed by the employees implicated in the investigation). Obligations to the whistleblower The employer must ensure that any whistleblower is taken seriously and dealt with appropriately. It is also important to keep in mind that the whistleblower may be protected against unlawful detriment or dismissal (for instance, in the UK and the US). This may affect any ongoing redundancy or disciplinary process. Obligation to employee(s) accused of misconduct In almost all jurisdictions, the employer has a duty to ensure, insofar as is possible in the context of an investigation, that the employees implicated in wrongdoing are treated fairly, appropriately, consistently and in accordance with the applicable legal requirements and the company s own policies and procedures. Generally, the employee must be given the opportunity to answer the allegations raised against him, before any disciplinary sanction can be applied. Duties of the accused employee in relation to the conduct of the investigation The employee will usually be expected to attend one or more investigative meetings to explain information gathered during the investigation. In some jurisdictions, the employee has a duty to co-operate with the investigative team and, in particular, attend any interviews in which the allegations brought against him or others are examined, as part of his employment duties. 4 Freshfields Bruckhaus Deringer LLP

7 In some other jurisdictions, however, there is no such legal obligation to co-operate, especially when the investigation concerns the individual himself (for instance, in Russia, France, Italy and the US). But if the employee refuses to co-operate with the investigation for example, by declining to be interviewed (or becoming sick), refusing to answer questions when interviewed and/ or refusing to hand over evidence his or her actions generally trigger negative employment consequences (eg disciplinary action or termination of the employment). This applies in Spain, Germany and the US, for instance. Legal guidance is therefore strongly advisable in order to draw up an appropriate plan to prepare for and run the investigatory meetings efficiently, with due attention to the legal issues that may arise in each jurisdiction and the use of the information gathered during the course of the interview (waiver of privilege and disclosure to third parties). Key considerations are as follows. Should the employee be given advance notice of such a meeting (and, if so, how much)? Should any specific introduction or warnings be given at the beginning of the meeting? For instance, in Germany the employee has no right to prior notice of a meeting whose purpose is a mere fact-finding exercise (ie when the employee is not suspected of any misconduct), unlike in a meeting that is part of a disciplinary process and aims at evaluating the employee s conduct. Who should attend and who should run the meeting to ensure confidentiality or privilege? Does the employee have the right to be accompanied? In some jurisdictions, the employee is entitled to be accompanied by an employee representative or even external legal counsel (for instance, in Austria; but not in the Netherlands, France, Italy or Spain). What are the consequences of potentially self-incriminating implications arising out of information obtained from the employee? In the Netherlands and the UK, for instance, the employee has the right to refuse to respond to questions if the answers would incriminate him. Global investigations: what employers need to know about investigating employees 5

8 Data gathering and preservation At the start of an investigation, and throughout the process, it is necessary to gather and review documents, s, computer hard drives and tapes of telephone conversations, if any. Special care must be taken to ensure compliance with data protection and employee privacy laws, in addition to the company s internal policies and procedures in respect of employee monitoring. Data protection regulations and employee privacy rights vary widely across jurisdictions, ranging from minimal protection to strict regimes that impose criminal sanctions for breaches. It is critical to assess the employer s right to monitor the employee s s (sent and received) and telephone calls made, and examine hard-copy and electronic documents. In the EU jurisdictions, this right is subject to strict legal requirements, which generally require prior warning to the individual employee and/or employee representative and may provide for consultation. Covert monitoring (for example, the use of hidden cameras) is rarely allowed (it may, however, be permitted under certain circumstances for instance, in France and the Netherlands). In the EU there are also restrictions on transferring personal data across jurisdictions, particularly to the US. Irrespective of any particular jurisdictional requirements, steps should be taken to preserve evidence and prevent destruction of hard-copy and electronic documents, including messages, video and audio recordings and any other related documents. A document preservation memorandum instructing employees not to discard or destroy materials is a common tool for this purpose. Careful thought (including legal input, depending on the legal regime applicable) should be put into the text of this memorandum and the extent of its distribution, particularly in the early stages of the investigation. Efforts to preserve information and guidance on how to do so appropriately should continue throughout the investigation and could expand as the legal team identifies additional facts and employees potentially involved in the conduct at issue. The kind of measures that can or should be taken to preserve electronic data on the company s computers may differ from one jurisdiction to another. 6 Freshfields Bruckhaus Deringer LLP

9 Can an employee be suspended? Whereas in some jurisdictions a protective measure such as suspending the employee s access to the IT network and excluding him from the office will not entail any further employment consequences (eg Spain and the UK), in other jurisdictions it may be regarded as discriminatory or potentially prejudicing any subsequent disciplinary measure (eg Belgium and France). Is it preferable to transfer the employee to another position, ask him to work from home or invite him to take a period of leave, pending the completion of the investigation? Keep in mind that these options may entail a modification of the employee s working conditions (even if only temporary) and, in many jurisdictions, require his consent (for instance, in Italy and Belgium). In most EU jurisdictions, restrictions can be placed on the employee while he is suspended during a disciplinary process for example, his access to the company IT network and offices can be suspended. Global investigations: what employers need to know about investigating employees 7

10 Taking disciplinary action against an employee When information gathered points towards misconduct, the employer needs to consider whether to initiate its disciplinary process against the employee. If the employer decides to take disciplinary action, it is important to assess when to do it to avoid jeopardising the ongoing investigation or generating potential disclosure of sensitive information (eg to regulators, prosecutors or the media) or voluntary destruction of evidence. A key step is to determine whether the employer is entitled to suspend, re-assign or dismiss an employee in the context of an investigation process (eg on the basis of the employment contract or other legitimate grounds). If so, the employer must ensure that any statement in this respect (such as in the suspension, re-assignment or dismissal letter or internal/external notification to explain the employee s absence) is consistent with other statements being made (eg to the regulator). The disciplinary process does not vary significantly across the EU jurisdictions. In most of them, a disciplinary procedure must be followed, which imposes on the employer compliance with strict legal formalities, in addition to company policies. The disciplinary procedure is likely to include: the employee s right to advance notice of the disciplinary meeting (in some jurisdictions, such as the UK, the employee also has the right to be informed in writing of the allegations against him); a disciplinary hearing (in some jurisdictions, the employee is entitled to be accompanied by an employee representative eg Italy, Germany and the UK); the employee s right to be informed in writing of the outcome of the disciplinary hearing; and the employee s right to appeal before the sanction is applied. Prior notification and/or consultation with an employee representative body may be required, as well (eg in Germany). How to communicate with the employee and adequately respond to internal and external enquiries about the employee s absence from the office are sensitive issues, which should be considered carefully. There are usually very strict time limits within which disciplinary action must be taken (or, if no specific time limits are imposed, then the employer is nevertheless required to raise and deal with the issue promptly and without unreasonable delay such requirements apply in the UK and the Netherlands). In France, the disciplinary process must be started no later than two months after the employer had knowledge of the employee s misconduct and the sanction must be imposed within one month of the preliminary disciplinary meeting. Beyond suspension, re-assignment or dismissal, other sanctions are often available (such as a written warning or a reduction in salary), which are exhaustively listed in work regulations or similar documentation publicly available within the organisation (eg in Italy or Belgium). 8 Freshfields Bruckhaus Deringer LLP

11 Contacts AUSTRIA Stefan Köck JAPAN Akiko Yamakawa T E T E BELGIUM Julie Pankert NETHERLANDS Brechje Nollen T E T E FRANCE Gwen Senlanne RUSSIA Olga Chislova T E T E GERMANY Boris Dzida SPAIN Raquel Flórez T E T E HONG KONG Peter Yuen UK Caroline Stroud T E T E ITALY Luca Capone US Adam Siegel T E T E Global investigations: what employers need to know about investigating employees 4

12 1 Freshfields Bruckhaus Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC It is regulated by the Solicitors Regulation Authority. For regulatory information please refer to Freshfields Bruckhaus Deringer Any reference LLP to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities. Freshfields Bruckhaus Deringer LLP 2010 October

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