Labour law challenges in employee interviews in the context of internal investigations
Dr. Felicia von Grundherr
15 March 2023
Internal investigations are an indispensable tool for thoroughly and rapidly clarifying compliance violations and other misconduct within the company.
The focus of internal investigations is the questioning of employees. However, there is a lack of special legal framework conditions for this. The last attempts at codification through the Corporate Sanctions Act (Verbandssanktionengesetz "VerSanG") failed in the legislative process. This makes it all the more difficult for employers to avoid "pitfalls" under labour law. This blog post is intended to provide an overview.
Obligation to participate and provide information
In principle, employees have a contractual duty to participate in an internal investigation and to answer questions truthfully. The duty to provide information follows from Secs. 675 and 666 of the German Civil Code (Bürgerliches Gesetzbuch "BGB"), ancillary duties under employment law (Sec. 241 para. 2 of the German Civil Code) and the employer's right to issue instructions. Refusal to participate or the provision of false information may have consequences under labour law and in individual cases may even justify termination.
However, it should be noted that in many situations employees run the risk of incriminating themselves and therefore have an increased interest in refusing to testify with reference to the freedom from self-incrimination. Whether employees actually have a right to refuse to testify has not yet been clarified by the highest court. In this respect, the circumstances of the individual case are decisive, in particular the question of whether answering the questions truthfully represents an excessive burden for the employee. Against this background, some labour courts assume that employees are not obliged to answer questions that could incriminate them under criminal law.
If the employer does not inform the employee of his or her right to refuse to testify, the information provided by the employee cannot be used – for example in subsequent proceedings against unfair dismissal. In practice, appropriate instruction by employers is therefore urgently recommended. In such an instruction, employees should be informed prior to any questioning that the information they provide may be used against them in criminal or labour court proceedings and that they may refuse to provide information in response to questions whose answers would put themselves or their relatives at risk of being prosecuted for a criminal offense or misdemeanor. This is the only way to ensure that the statements made in the context of the employee interviews can later be used in a labour court proceeding.
To ensure that employees cannot later distance themselves from the statements made, it is common practice to prepare a record of the interview and have it countersigned by the employees. It is also advisable to always conduct interviews at least in pairs in order to be able to prove the content of the interviews more easily.
Co-determination rights of the works council
If a works council exists in the company concerned, any co-determination rights of the works council must also be observed when conducting the employee interview as part of internal investigations. Although the works council does not have a general right to participate in internal investigations, various co-determination rights of the works council may apply in individual cases:
Sec. 87 para. 1 no. 1 Works Constitution Act (Betriebsverfassungsgesetz "BetrVG") opens up a right of co-determination in the "determination of order and conduct in the company". This usually also includes the questioning of employees in connection with compliance violations and other misconduct. Exceptions apply only if the facts to be clarified relate solely to the work behaviour of the employees and have no collective reference. This is the case, for example, if only individual employees are specifically approached and requested to provide information.
If technical equipment that processes employee-related data is used in the collection or evaluation of employee-related information, the works council's right of co-determination pursuant to Sec. 87 para. 1 no. 6 Works Constitution Act must be taken into account. In this case, the employer must inform the works council comprehensively and in good time about the use of the software and negotiate with it about the modalities of data collection and processing. In addition, the data protection of the employees concerned must be preserved and the data collected must not be used in an unauthorised manner.
If the interview of a large number of employees is to be carried out as part of the internal investigation by means of standardised questionnaires, a right of co-determination pursuant to Sec. 94 para. 1 Works Constitution Act may also be considered. However, a right of co-determination only arises if information about personal circumstances, knowledge and skills of the employees is also collected in the questionnaires.
Involvement of third parties in the employee interviews
Employees often express the wish to have a lawyer or a works council member present at their interviews. In principle, employee interviews are personnel discussions that are to be attended personally. Accordingly, the strictly personal nature of the employment relationship generally prohibits the presence of persons from outside the company against the will of the employer. In principle, employees cannot demand the presence of their lawyer or any other representative of their interests. The situation may be different if there is also a dismissal on grounds of suspicion under discussion. Depending on the individual case, however, the presence of a works council member or legal counsel may be helpful in obtaining the employees' cooperation. In practice, it is usually common to allow participation.
Special challenges with remote investigations in the mobile office
The widespread use of mobile work also has an impact on internal investigations. So-called "remote investigations" not only present employers with considerable data protection challenges arising from the handling of confidential data in the mobile office. From a labour law perspective, too, new problems arise in connection with securing evidence and questioning employees "from a distance".
When an employer requests records and documents located in the employee's home or mobile office, practical problems arise in the first place: Even if the employer has the right to request these documents, the actual implementation of a handover is more difficult. The employer will usually not know exactly which documents are located with the employee. Judicial enforcement of the obligation to hand over is then made considerably more difficult if the employer cannot sufficiently specify the documents to be handed over. This problem arises in particular when employees use private devices for work. For this reason alone, it should be ensured that only company devices are used for work purposes and that they are not used privately at the same time.
A search of the home office will regularly conflict with the fundamental right to inviolability of the home from Art. 13 German Constitution (Grundgesetz "GG"), so that a search of the home will only be possible in exceptional cases.
In the case of remote investigations, audio or video conferences are often used to interview employees. This involves risks: The employer has no insight into which other persons are "listening in" or whether a hidden recording is being made. For particularly sensitive topics, it may therefore be advisable to interview employees in person at the company rather than via telephone, Zoom, WebEx, teams, etc.
Impending consequences for violations of labour law requirements
Employers must ensure that all labour law requirements are complied with when conducting employee interviews as part of internal investigations. In the event of violations, employees may be entitled to claims for damages or compensation. Employers must also reckon with the fact that the results of an internal investigation cannot be used in court in a subsequent dismissal protection case if it was not carried out properly.
The lack of a specialised legal framework for employee interviews as part of internal investigations poses challenges for employers.
The labour law issues raised in such investigations are manifold in nature and it is imperative that they are taken into account during planning and implementation. In particular, employers must ensure that the employees' statements can later be used in court.
Any co-determination rights of the works council must also be considered. A works agreement can help to avoid internal tensions, comply with data protection and promote cooperation with the employees concerned.
Particular challenges arise with remote investigations with regard to the handover of documents and virtual interviews. Employers are advised to check carefully whether, given the urgency of a matter, personal interviews with employees should be considered.