Switzerland: Abusive Conflict Termination: Compliance with Criminal Investigation Principles Not Required When Conducting Internal Investigations (Judgement of the Federal Supreme Court 4A_368/2023 of January 1st, 2024)

In its Judgement 4A_368/2023 of 19 January 2024, the Federal Supreme Court (FSC) addressed fundamental questions relating to internal investigations by the employer in cases of suspected misconduct by employees at the workplace.

The subject of the proceeding was the question of the abusiveness of an ordinary dismissal. In this context, the question had to be answered as to whether a previous international investigation into allegations of sexual harassment had been conducted correctly.

The FSC denied an abusive dismissal and established the following fundamental principles for internal investigations:

Employers do not have to follow criminal procural rules when conducting internal investigations (e.g., there is no right for the employee in question to prepare and it is sufficient to inform him about the purpose and content of an interrogation at its beginning).

Regarding the information of the concerned employee about the allegations against him and the identity of the informant, abstract anonymised allegations are sufficient, and the identity of the informant can be treated confidentially. There is no obligation on the part of the employer to investigate possible internal intrigues against the accused employee.

Accused employees are not entitled to be accompanied by a person of trust when they are confronted with allegations.

If the internal investigation leads to an ordinary dismissal, the dismissal is not considered abusive, even if the original suspicion isn’t confirmed later.

On a more general note, internal investigations are a powerful instrument for employers that can have far-reaching consequences for the accused, employees involved and informants. The risk of abuse through malicious accusations is real. Even though the FSC, in its recent ruling, confirmed the principle of freedom of dismissal, employers are well advised to elaborate specific guidelines for internal investigations and to conduct such investigations with the necessary professional distance and diligence.