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“We conduct investigations in line with all applicable laws and regulations.”
Easy for you to say, but what does that mean in practice?
In part one, Laura Sparschuh discussed the options available to employees in Germany when reporting cases of workplace harassment. In this second article, Anna-Maria Hesse and Laura highlight what employers need to consider when it comes to investigating workplace harassment. This question is very relevant, not least because when it comes to disciplining any employee found guilty of such conduct, it is necessary that the investigation has been carried out properly. We have drawn up a checklist to provide a rough guide.
- Familiarise yourself with the relevant policies and internal rules. This seems simple at first glance, but often is tricky. Of course, most employers know to look in their Code of Conduct to see what it says about investigations, but often important rules on investigations are hidden in regulations that are not used daily. For example, when it comes to an IT investigation, employers need to check whether any part of their IT policy applies. Internal regulations and policies should therefore always be checked to see whether they contain relevant rules for the specific case. If the particular circumstances of the case require a departure from those policies, the detailed thinking behind that departure must be carefully recorded.
- Keep an eye on the time! If it turns out that the allegations are so serious that dismissal is a possibility, then German employers have no time to lose. In principle, dismissals for cause must be notified and delivered to the employee within two weeks of the employer becoming aware of the circumstances that may justify such a dismissal. How does this fit in with an investigation, which is often a “moving target”? Our pragmatic recommendation is to document the individual investigative measures so that the tipping point, when the employer becomes aware that there may well be grounds for dismissal, can be identified. This will be at some point between receipt of the allegation and the actual decision to dismiss – in other words, when the employer concludes that there is material substance to the allegation.
As a rule of thumb, the investigation should not pause and ideally at least one investigative step should take place each week to demonstrate that the investigation is consistent and ongoing and therefore any decision to dismiss has not yet crystallised. If the process does stall for longer than that, for example because a key player in it is on holiday or sick leave, it is sensible to document this.
- Is there a works council? If a works council exists, it has extensive rights in connection with the investigation. Certain rules that govern the handling of an investigation may also be found in binding agreements with the works council. Whether and how specifically the works council must be informed or involved in individual cases will differ on a case-by-case basis. However, far-reaching investigations that affect several employees should not be carried out without at least informing the works council. The obligation of confidentiality of the works council depends on the type of information that is shared. Personal data, for example, enjoy a greater level of protection than general information on an ongoing investigation. This aspect, and the level of detail shared with the works council, needs to be assessed on a case-by-case basis.
- Are we talking about criminal conduct? As we highlighted in our first article, it can be difficult to draw a line between some sorts of workplace harassment and criminal acts. If there are any indications of potential criminal conduct, employers should seek criminal law advice. It may be appropriate to inform accused employees that they may have committed a criminal act before questioning them so that the results can be used in subsequent proceedings. For instance, offenders could argue that they did not know their rights when they were questioned by the employer, that if they had known, they would have never agreed to an interview, and that for this reason their statements to the employer cannot be used to their detriment in some other criminal or civil proceedings.
- Data protection and personal rights are two issues that must be addressed at every step of the investigation. Specifically, we would like to emphasize two points: If there is a Data Protection Officer, they should be involved from the outset in any investigation that may entail any data-sensitive step such as accessing the employee’s emails. They are likely the ones to determine if and to what extent emails can be accessed or reviewed and often conduct such email reviews themselves. Further, when it comes to interviews (including preparing questions and the scope of any interviews), employers must remember to protect the personal rights of complainants as well as any alleged offenders. This requires a sensitive approach to what and how much information is shared and to whom, to mitigate the risk of reputational damage.
- Finish it well. Both the General Equal Treatment Act and the Whistleblower Protection Act stipulate – with slight differences – that employees who complain about abuses must be informed about the outcome of investigations. Compliance policies or policies specifically for internal investigations also often contain such requirements. This should be strictly adhered to, and the investigation should be completed properly and documented in good shape for ease of reference and potential future proceedings. That means that the reader of the report can understand fully the evidence relied upon and how that evidence led the employer to the factual conclusions which it reached.
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