Courts closely scrutinize investigations into inappropriate behaviour at the workplace

Reports of inappropriate behaviour require swift and decisive action from an employer. At the same time, due care must not be overlooked. Recent case law shows that judges strictly assess whether an employer has conducted an investigation with sufficient due care into the circumstances of the complaint. For example,  several judgments have been rendered in which summary dismissal was annulled, dissolution was refused, or dissolution was granted only with an award of fair compensation because the underlying investigation was found to be inadequate.

If the employer wishes to use the investigation as a basis for, for example, a warning, suspension, summary dismissal or termination of the employment contract, the investigation must meet various requirements. These are discussed in this article.

Work with a clear investigation protocol

Before or at the start of the investigation,  the parties involved should understand the applicable procedure.  Employers are expected to set out, amongst other things:

• who is conducting the investigation;
• the scope of the investigation and the questions to be addressed;
• how interviews are conducted and recorded;
• how confidentiality is handled;
• whether those involved are permitted to respond to statements and preliminary findings.

The protocol must be shared with the parties involved and then strictly adhered to. Deviating from that protocol may undermine the reliability of the investigation.

Ensure a careful investigation with sufficient procedural safeguards

The investigation must be conducted carefully, with the principle of hearing both sides being central. The accused employee should be informed timely and in a sufficiently and complete manner about the nature and substance of the allegations. General descriptions such as ‘inappropriate’ or ‘inappropriate behaviour’ are insufficient.

 The accused employee must be given enough detail to understand the alleged conduct. General allegations or broad references to “inappropriate conduct” are usually insufficient. Where possible, the allegations should be supported by concrete examples, dates, situations, witnesses, documents (such as whatsapp screenshots) or other relevant context. Otherwise, the employee cannot properly defend themselves.

In addition, the employee must be given sufficient opportunity to respond, not only during an interview or hearing, but also to the (draft) interview report and to the preliminary findings before the investigation is concluded.

Have statements checked

(Accused) employees who are interviewed and/or provide statements during the investigation,  should in principle be given the opportunity to review and, where necessary, comment on or correct the written record of their statement/the interview. This prevents disputes regarding the accuracy of the input and enhances the evidential value of the investigation report.

Ensure independent and expert investigators

An external investigation is not always required. It is important first to assess whether the report can be carefully addressed and resolved internally and in a less intrusive manner. Where a person-centred investigation is appropriate, the investigator must be sufficiently independent and impartial.  A complete absence of any relationship with the employer is not always required, but the appearance of bias should be avoided. In case of serious or complex reports, it may be advisable to engage an external investigator or a specialist investigation agency. For a thorough external investigation, it is important that the investigators have demonstrable experience with investigations focusing on specific individuals and employment law matters.

Support conclusions with reliable evidence

Courts set high standards for the evidence presented to establish that inappropriate behaviour has taken place. A single statement from a single complainant is not always sufficient to impose a far-reaching measure. Conclusions must therefore be supported as far as possible by other statements, emails, messages, etc.

Anonymous statements

Anonymous statements can be used, but they require additional safeguards. They should be factual, concrete and carefully recorded. Preferably, anonymous statements should support other available evidence rather than serve as the sole basis for serious employment-law measures. The defense rights of the accused employee must remain protected and the accused must therefore be enabled to respond well informed about the accusation.

For employers

A thorough investigation protects not only the employees involved, but also the employer. Without a clear protocol, a proper hearing of both sides, independent investigators and sufficient reliable evidence, even a report that is serious in its own right may not provide a sufficient basis for termination of the employment agreement. We support employers in ensuring compliance with employment law safeguards during an investigation into inappropriate behaviour and in determining appropriate next steps.