Harassment: how to conduct an internal investigation

An internal investigation is a process implemented by a company to determine whether suspicions of a breach of its internal rules or the legislation in force are well founded. It aims to establish with certainty the facts alleged by someone so that the company can take appropriate measures.

In labour law, the topics that most frequently cause an employer to implement an internal investigation are reports of psychological harassment, sexual harassment, discrimination, or suffering at work.

Initially, these investigations were rare and reserved for groups whose international culture made them more familiar with this type of process. However, developments in case law and companies' obligations to protect the health and safety of their employees has changed practices in this field and they are now put in place in all types of companies.

Internal investigations are increasingly frequent and have been transformed into a more structured process, involving a number of key legal issues, with one main objective: in the event of litigation, the investigation report must be deemed admissible by the court to allow an employer to prove the veracity of the complaints made against an employee and justify the measures taken.

Why and when conduct an internal investigation in the company?

When an employer is informed of an allegation of psychological harassment or suffering at work, for example, it is obligated to conduct an internal investigation.

Even if it is not an obligation provided for by the French Labour Code, recently it has been required by the Court of Cassation (Court of Cassation, Employment Division, 27 November 2019 no. 18-10.551).

Otherwise, it is likely that in the event of litigation, the courts will consider that the employer has not taken all the necessary measures to protect the health and safety of its employees.

What is the purpose of the internal investigation?

The internal investigation is intended to help the employer to verify the truth of the facts reported, to qualify the facts in the legal sense of the term and, finally, to determine whether disciplinary action is necessary.

The employer can also collect testimonies or other evidence, which can then be used in court to prove that the measures taken with regard to the employees concerned are relevant and in proportion. (Court of Cassation, Employment Division, 29 June 2022 no. 21-11437)

The investigation is an essential aspect of the employment relationship and enables the employer to comply with its obligation to prevent occupational risks, by showing that management has taken the situation seriously. (Article L.4121-1 of the French Labour CodeCourt of Cassation, Employment Division, 6 July 2022, no. 21-10718)

A major objective: reducing litigation risks.

Current case law has shown that employers that conduct internal investigations are more readily considered to have "dealt appropriately" with the situation. Naturally, this also presupposes that certain essential rules of form and substance have been complied with.

On the other hand, employers that do not conduct an internal investigation or which are too late in doing so may be considered, in the event of litigation, as having seriously failed to fulfil their obligations, thus justifying the termination of the employment contract at their exclusive fault.

It is important to react quickly and manage the time limits!

Conducting an internal investigation raises crucial questions in terms of time limits.

While an employer may not discipline an employee for misconduct of which it became aware more than two months previously, case law nevertheless requires that an employer has a precise knowledge of the extent of the situation before giving notice of potential disciplinary action. In these circumstances, an investigation evidently appears necessary, or even essential, when the facts are complex.

In this context and when the circumstances of the case necessitate such an investigation, the two-month time limit will only begin to run from the date of its results, which will allow the employer to gain precise knowledge of the situation reported.

At the same time, the employer must react quickly to the allegations reported to it and conduct the internal investigation without delay. Time must not be wasted.

This is why it is necessary to quickly find a professional who has expertise in the process and who can handle these points.

The conditions to be met to conduct a fully compliant internal investigation

The employer has a certain degree of freedom in the form the investigation takes and how it is conducted.

Indeed, it is not regulated by the French Labour Code and case law work is underway to define what is permitted, or not permitted in the context of investigations. However, over the years, it has been possible to identify certain rules and an outline of what is considered acceptable, or unacceptable by the courts.

In practice, it will also depend on potential resources, the people involved, and the overall context of the company.

Conducting the investigation

The investigation can be conducted in a number of ways.

Some employers choose to set up an investigation committee to ensure the objectivity of the investigation. Others may entrust the investigation to an external firm that specialises in psychosocial risks or company employment law. Finally, a member of the Works Council (CSE) may also conduct the investigation if employees' rights, their physical or mental health or their individual freedoms have been infringed.

Axel Avocats can conduct an internal investigation within your company   For more information, contact us directly

Regardless of the method chosen to conduct the investigation, the employer is responsible for deciding how the investigation report should be followed up. Disciplinary action can only be taken if harassment has been proven in a sufficiently clear and precise manner.

Don't forget the alleged victim! : During an investigation, attention is mainly focused on the facts reported and on finding the truth. However, the employee who reported these facts must not be forgotten and must be removed from any "danger". If the employee is still occupying their post and is not, for example, placed on sick leave, they should be offered appropriate measures (transfer, exemption from work, etc.) in order to put an end to the situation at least temporarily, while the investigation is completed and the conclusions lead to a classification of the situation reported. It will then be time to find a more permanent solution with the employee.

The guiding principles

In all cases, the investigation must be conducted fairly, impartially and in accordance with the legislation in force.

It is therefore essential to respect the principles of:

  • confidentiality: situations reported sometimes involve details of the personal or intimate life of the employees concerned and can have a resounding impact on their professional situation (whatever the outcome of the complaint);
  • neutrality and impartiality: an investigation cannot be considered objective and reliable if the investigators are involved more or less directly in the facts reported or may have an interest in seeing the situation resolved in one way or another;
  • fairness: the methods used to carry out the investigation must be respectful of all parties, in particular in terms of transparency on the use made of the data, the non-mandatory nature of the investigation, etc.

Of course, it is also essential that the investigation takes place under lawful conditions. (Council of State, 2 March 2020, no. 418640)

The process per se

The investigation will be conducted through interviews carried out by the investigator in accordance with the rules set out above.

It should be noted that the internal investigation does not have to respect the adversarial principle, which is a rule that applies only to the judicial phase of the case: the employee accused of harassment does not have to be informed in advance and does not have to be interviewed during the investigation (Court of Cassation, Employment Division, 17 March, 2021 no. 18-25.597).

Similarly, the list of people interviewed as part of the investigation is decided by the employer who has no particular obligation in this regard (provided that the decision whether or not to interview each employee can be justified objectively). It is therefore not necessary for the employer to interview all the colleagues of the employee concerned in order to prove the existence of psychological harassment, as long as the testimonies collected are sufficiently convincing. (Court of Cassation, Employment Division, 8 January 2020, no. 18-20151; Court of Cassation, Employment Division, 29 June 2022, no. 21-11437)

Provisional timetable, content of the questions to be asked, stakeholders to be associated with the investigation, list of people to be interviewed, particularities to be anticipated (sick leave, etc.): the assistance of a lawyer is essential at this stage, as there are so many issues to be considered before this phase.

The investigation report

After gathering all the information, interviews and statements, the investigator analyses all the data collected and draws up a written report that will help the employer to make a decision.

The report may or may not be sent to all those involved (Court of Cassation, Employment Division, 18 February 2014, no. 12-17.557 – the employee considered as the perpetrator is not entitled to obtain the documents that  prove the accusations made against them, including at the preliminary interview stage). 

The follow-up to the investigation: making a decision

If the situation reported is acknowledged, the decision taken by the employer may range, in relation to this report, from taking corrective measures to remedy the situation, such as additional training on harassment for all employees, to disciplinary action against the alleged perpetrator.

This disciplinary action may range from a warning to dismissal, depending on the seriousness of the facts.

It is crucial that the employer does not forget the victim in all this and informs them of the decision and any measures taken.

The employer will also need to continue to monitor the situation to ensure that the harassment does not recur by maintaining a safe and respectful work environment, or ensuring that the victim does not suffer retaliation. The follow-up may also involve regular checks on the victim's state of health and, if necessary, offering specific resources such as access to psychological support, if necessary.

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