HR Investigations across jurisdictions

Internal HR investigations are an integral part of good corporate governance and compliance with legal and regulatory obligations.

For global employers, regulatory, cultural and logistical challenges take on a new dimension when the subject matter of investigations spans jurisdictions, or where individual stakeholders are situated in different countries. Carefully-planned processes are essential to effectively manage the practical, reputational and legal risks.

Process considerations

For many types of HR investigations, there are no statutory process requirements for the conduct of the investigation. However, other related employment laws will often ensure a certain level of fairness by demanding that such processes are carried out in a reasonable manner, and in some cases also require steps to be taken to avoid a repeat of issues. Generally, companies may therefore determine the investigation process, which is often set out in an internal (local or global) company policy, or in an agreement with an employee representative body, to ensure transparency and consistency of approach.

In some cases, there are however statutory or regulatory process requirements that must be adhered to in accordance with applicable local laws. Whistleblowing investigations are a good example of this. Jurisdictions are increasingly legislating to encourage and protect whistleblowers, such laws often incorporating certain procedural requirements for dealing with whistleblowing complaints. For example, in the EU, the Whistleblowing Directive requires Member States’ whistleblowing laws to include certain minimum prescribed timescales for acknowledging complaints and providing feedback.

Suspension of employees during a HR investigation may be considered beneficial in some cases, including where there is a risk to the evidence or to the company’s property or business interests if an employee were to remain in the workplace. Although the possibility of suspension is often a consideration in some countries, including the UK, in others suspension may be prohibited, there may be procedural rules around its use or it may be limited to a certain timeframe. It is important therefore that applicable local laws and practices are recognized and applied.

The involvement of external parties?

Employers faced with the prospect of needing to conduct a HR investigation will need to establish, at the earliest possible stage and in compliance with any internal policy, who will carry out the investigation and which resources they will need

It will be essential to ensure that the team has a clear understanding of who is responsible for which aspects of the overall investigation procedure. It may also be necessary to give consideration to reporting lines, including how often and to whom updates on the progress of the investigation are to be provided. In some cases, a dedicated steering committee or board sub-committee may be required to provide instructions. In such cases, care needs to be taken when deciding who should sit on that committee.

Organisations should assess whether any obligation has arisen to notify a regulator or other authority about the issue that is the subject of the investigation. Certain regulatory bodies impose obligations on regulated organisations and individuals to notify them as soon as practicable if a regulatory breach may have arisen, with significant penalties for breach of that obligation.

Increasingly, companies consider the use of external parties to advise on or support the investigation process. That decision may be based on capacity or capability to carry out the investigation, or could be for other more strategic reasons such as the possibility of relying on legal privilege to protect the content and findings of the investigation from later being disclosed.

The concept of privilege is not however recognised in all jurisdictions in respect of HR investigations, including Sweden and the UAE. Where privilege is however applicable and sought to be relied on, care must be taken at the outset to ensure that the local rules are understood and that privilege is not inadvertently waived.

It should be noted that in some countries, there are rules around the use of external parties to assist with HR investigations. Even within countries, such rules can sometimes differ on a regional or state basis, including in the US. For example, California precludes the use of outside investigators in HR matters unless the individual is a licensed attorney or licensed private investigator.

Evidence and documents

It is crucial to not only ensure that early steps are taken preserve evidence, but also that any confidentiality requirements and data privacy laws around the processing of data are understood and adhered to.

Particularly for investigations across borders, it should be noted that data protection restrictions can be particularly stringent where it is intended to transfer data between countries. Some jurisdictions will not allow data to be removed from the country at all, meaning that arrangements may need to be made to review the data within the relevant jurisdiction.

Data privacy considerations can also apply beyond the collation of evidence as part of an investigation. Particularly for complex investigations or investigations that could have potentially significant implications for a business, the progress and findings of HR investigations are often reported internally. Where data is processed as part of that internal reporting, data privacy restrictions must also be considered.

Dealing with parallel investigations

In some cases, there may be a number of different types of investigations arising out of the same set of facts. For example, where a complaint involves allegations of discrimination and harassment, but also makes whistleblowing complaints concerning regulatory compliance.

Where there are two or more ongoing investigations running in parallel, it will be important for all parties working on the investigations to be aligned in terms of timings and the scope and remit of each separate investigation. This will help to protect privilege where relevant, avoid confusion, and limit duplication of work. 

In addition, taking account of the interplay between the different legal frameworks that may apply to the different investigations is essential. For example in the UAE, where sexual harassment can lead to criminal sanctions, meaning that employers investigating and responding to such complaints should take account of the employment law framework, as well as the civil code and the penal code. This may include a positive obligation to make disclosures to the police.

Key action points

• Ensure robust procedures are in place for handling workplace investigations.

• At the outset of any investigation, make an investigation plan to ensure compliance with any relevant internal policies or agreements, the correct sequencing of the investigation, the preservation of evidence, the protection of confidential information and the interaction with any parallel investigations. 

• Ensure the local laws, regulatory requirements and cultural landscape are understood, including on the use of external parties to assist with the investigation, any process and timing requirements, and any external reporting obligations.

• Keep in mind confidentiality and data protection issues. Seek specialist advice where necessary, including where it is proposed to transfer data across borders.

How we can help

Our significant global footprint means that we are well placed to support global employers in their HR investigations, wherever they have a presence. Our lawyers not only have extensive experience in the complexities of different laws, but also in the management of projects and investigations spanning jurisdictions and driving those matters to maximize the strategic aims and benefits.

We also regularly carry out a programme of events, webinars and training courses designed to keep you up to date. See our Events, Training and Webinars page and watch out for details of our Cross-border HR investigations training course.