Being a good employer while having an internal investigation going on
It happens more often, an internal investigation conducted by an attorney in the event of a suspicion of irregularities within an organisation. Employees, also in senior positions become involved as whistleblower, witness or may even be the subject of an investigation. How does employment law affect these investigations?
Employment law and internal investigation
The Public Prosecution Service and the Fiscal Intelligence and Investigation Service are for example more likely to use the outcomes of internal investigations for investigating (financial) crimes.
Such investigations are often conducted by attorneys who are engaged by a company. Although employment law is in principle not applicable to these attorneys – as it does not concern an employer/employee relationship – employment law does reflect on how these investigations are conducted.
Good employment practices
Pursuant to Dutch employment law, an employer must behave as a good employer. Therefore, a certain degree of care may also be expected of the employer with regard to its employees in the event of a suspicion of a malpractice or other irregularities. As such, the auxiliary persons engaged by the employer (i.e. the attorneys conducting the internal investigation) are also bound by a duty of care. Part of this care are the employment law principles that have to be taken into account.
The principle of hearing both sides of the argument plays an important role with respect to an employee who is subject of an investigation. An employee involved in an investigation should be given the opportunity to tell his/her side of the story. The principles of proportionality and subsidiarity are also applicable to an internal investigation. When choosing a particular investigation method, it has to be assessed (i) whether this method serves the purpose (proportionality) and (ii) whether this purpose cannot be achieved by less intrusive methods (subsidiarity). For example, if it is considered to have interviews with employees, it has to be considered if the same purpose (e.g. gathering certain information) can be reached by a less intrusive method (e.g. internal audit).
Furthermore, an employee who is subject to an internal investigation may find themselves in a difficult position, as they may be obligated to cooperate actively in the internal investigation which also entails including answering questions. At the same time the employee may incriminate him/herself. In that case, they would have to be informed about their criminal law safeguards and consequently be offered legal assistance.
The standard of due care which applies to employers under Dutch employment law also plays a role in the event of an internal investigation. It is therefore important that the parties involved ascertain in what way a thorough investigation must be conducted which is compliant with Dutch employment law at the same time.
Should you require any assistance in the field of internal investigations, please contact your trusted adviser of our Corporate Investigations, Compliance & Defence team.
Hermine VoûtePartner Attorney at law
P. Hermine E. Voûte, attorney at law, is member of the Employment & Benefits practice group in the Netherlands and chairwoman of the Diversity & Inclusion committee. She has over 33 years’ all-round experience in employment law, with a particular focus on high-profile dismissals, restructurings and collective dismissals, and co-determination procedures.T: +31 20 578 59 75 E: [email protected]