The Federal Supreme Court has ruled in the Judgment 4A_368/2023 of January 19, 2024 (no official publication) dealt with an internal investigation against the director of a bank who had been accused of internal sexual harassment. The bank later terminated the employment relationship. The employee subsequently sued for a change of reference (successful) and compensation for unfair dismissal (unsuccessful).
Before the Federal Supreme Court, the question of impropriety was open and, in this context, the question of whether the internal investigation had been conducted correctly. The Federal Supreme Court clearly stated that an internal investigation should not be conducted in accordance with the rules of criminal procedure:
The criminal procedural safeguards have no direct effect on an employer’s internal investigations. Apart from a few exceptions that are not of interest here, fundamental rights in general have no direct third-party effect among private individuals. […]
The adoption of criminal procedural rules into private law is prohibited simply because the legal relationships in question are fundamentally different are: For example, the parties to an employment contract voluntarily establish a personal continuing obligation. The situation is different in criminal proceedings, where the accused person is subject to the criminal power of the state regardless of their will. In addition Completely different legal consequences is at stake […]. In no other area of law are more drastic encroachments on the fundamental rights of those subject to the law conceivable. If, on the other hand, the protection against dismissal under employment law is at stake, as is the case here, then in the worst case the employee is threatened with ordinary dismissal in compliance with the contractual notice period.
The earlier judgment 4A_694/2015 nothing. There, the BGer had stated the following:
2.4 […] l’employeur est censé accomplir ou faire accomplir, éventuellement par un mandataire externe si l’accusation est grave, une enquête complète comportant, pour le travailleur dénoncé, des garanties équivalentes à celles d’une instruction pénale [citations of doctrinal opinions].
From these contributions also, it is understood that the employer must make an effort to verify the facts denounced. […]
However, it could not be inferred from this that the FSC had endorsed the doctrines cited:
The lower court considered that the present case was “very similar to criminal proceedings”. It based this on the judgment 4A_694/2015 […]. According to the literature cited there, the employer must conduct a full investigation in the event of serious allegations, in which the accused employee must be granted guarantees equivalent to those in a criminal investigation […].
The appellant rightly argues that the lower court interpreted the judgment 4A_694/2015 of May 4, 2016 too broadly. There, the Federal Supreme Court reproduced doctrinal opinions […]. However, the facts of the case at the time did not concern an internal investigation in the strict sense. If the Federal Supreme Court had not merely quoted the requirements of the doctrine, but had also wanted to endorse them, it would have done so in the form of an unnecessary obiter dictum and, moreover, would have created a contradiction to the principle that principles of criminal procedure only apply in relation to state authorities […].
The termination was then not abusive because Reasonable suspicion of the corresponding behavior:
Overall, the complainant [bank] found that the inappropriate behavior described by the reporting employee and the other employees had very likely taken place. The investigation report therefore recommended the initiation of disciplinary proceedings against the respondent. The competent disciplinary body met on October 16, 2018 and decided to dismiss the respondent […].
The fact that a dismissal on suspicion may be permissible was, as far as can be seen, not in dispute, which did not prompt the Federal Supreme Court to make any further considerations:
However, even the mere suspicion of serious misconduct can constitute good cause for termination without notice (“dismissal on suspicion”). Moreover, a dismissal without notice is not even abusive if the suspicion proves to be unfounded. Abuse only exists if the employer accuses the employee recklessly and without reasonable grounds […].
However, it was disputed whether the investigation – which had led to the suspicion and thus the dismissal – had been carried out correctly. Following the above findings, the BGer confirmed this:
According to what has been said, the complainant made the following prior to the ordinary termination Extensive clarifications by a dedicated team. It came to the conclusion that the suspicions against the respondent had been substantiated. It cannot be said that the complainant terminated the contract lightly or without reasonable grounds.
The BGer is even clearly stepping back:
The lower court seems to lose sight of the fact that the principle of freedom of dismissal also applies in employment law. In principle, no special reasons are required for dismissal. Freedom of dismissal is only limited by the prohibition of abuse. The lower court assessed the internal investigation of the complainant with an exaggerated standard that went beyond the requirements of criminal procedure. In some cases, it demanded more from the complainant than a criminal prosecution authority would be allowed to demand.
In practice, this means that companies do not have to behave like public prosecutors. They must comply with internal regulations exactly and document this. However, it is not necessary, for example, to identify the suspected person to inform them about the purpose and content of the first interview:
It is not objectionable that the respondent only found out about the purpose and content of the interview at the beginning. The lower court wrongly accused the complainant of not having had the opportunity to prepare for the interview and to search for exculpatory facts. In addition, the respondent was able to correct the minutes of the interview and submit a separate written statement. […]
It is also not mandatory in principle to inform the suspected person of the possibility of being interviewed by a Accompany trusted person to leave:
4.4.2 The lower court further criticized the complainant for not having been able to be accompanied by a trusted person during the interview […].
According to Art. 158 para. 1 lit. c of the Code of Criminal Procedure, the accused person must only be informed at the beginning of the first interrogation that they are entitled to appoint a defense or, if necessary, to request an official defense. Against this background alone, the absence of a trusted person during the interview on September 20, 2018 does not constitute such a serious deficiency that it should be considered an abusive dismissal. As already explained, the Code of Criminal Procedure and the principles of criminal procedure are not applicable here anyway. The fact that the internal “Sexual Harassment Information Sheet” grants the respondent the right to be represented by a person of trust does not change the above. […]