In brief
When reports come in through whistleblowing channels or concerns about employee conduct otherwise arise, a recurring issue has been whether internal investigations must consider the principles of criminal procedural law. In a recent decision, the Federal Supreme Court (FSC) held that this was not the case and confirmed a reasonable balance between the obligations of employers and the rights of employees provided for by Swiss law (see Decision of the Federal Supreme Court 4A_368/2023 of 19 January 2024).
This decision is welcome for at least two reasons. First, in recent years, scholars have expressed more employee-friendly positions, causing uncertainty about the room available to companies wishing to engage in fact-finding as part of the investigations to understand concerns that were raised. Second, the decision reassures foreign multinational companies operating in Switzerland about Swiss employment law remaining liberal, a refreshing contrast to the much stricter legal frameworks in many other jurisdictions.
Background
To summarize, the case centered around an employee’s termination following an internal investigation for sexual harassment due to a report that had come through the internal whistleblowing channel. The employee brought a lawsuit for abusive termination. The Zurich Labor Court rejected the claim, but the appeal to the High Court of the Canton of Zurich was successful. According to the high court, the employee was unable to adequately defend himself against the allegations raised against him, leading the court to conclude that the termination on the basis of the internal investigation was abusive. The FSC now overturned the high court’s decision.
Key takeaways
Further observations and key takeaways are highlighted below.
- Criminal procedural rules or concepts do not apply to internal investigations governed by employment law. Contrary to what certain scholars have said, the FSC made it clear that criminal procedural guarantees have no direct effect on internal investigations. In this regard, the FSC held the following views:
- Employers are not required to inform employees suspected of misconduct of the purpose and content of an interview in advance.
- It is not fatal to the lawfulness of the termination if the employee is not informed ahead of the interview of the option of being accompanied by a person of their confidence, even if that option was provided for in company policy.
- The reporting person’s identity must be kept confidential, and while the employee suspected of wrongdoing has a right to understand the allegations, these should be framed in such a way as to avoid revealing the reporting person’s identity.
- Unlike criminal authorities, employers are under no obligation to consider any and all potentially relevant facts before they arrive at a conclusion and decide on disciplinary consequences.
- Ordinary termination due to reasonable suspicion is not abusive. The FSC reaffirmed the principle of freedom to terminate employment relationships, which entails the following rules:
- Employers are not required to provide particular reasons for an ordinary termination of employment to be valid as long as the termination is not frivolous and without any reasonable basis.
- The employment relationship may be terminated on the basis of mere suspicion. Even if post-termination the suspicion is determined to be unfounded, the termination of employment resulting from the suspicion is not considered to be abusive.
- The employer does not have to prove that the allegations raised are accurate or, for instance, whether they are the result of a conspiracy against the accused individual.
- However, the employer is still required to carry out an adequate investigation into the allegations raised before terminating the employment relationship to preempt the risk of finding that the termination was frivolous and hence abusive.
