Internal Investigations: A Cross-Country Perspective

Navigating the complexities of internal investigations is crucial for maintaining compliance and fostering a safe workplace environment. In this Q&A guide, Dechert's labor and employment team provides a comprehensive comparison of the practices and legal requirements related to internal investigations in France, the U.S., and UK.

1. Is an internal investigation always required?

France: French courts consider it best practice despite there being no statutory requirement to do so.

U.S.: According to the Supreme Court, once a harassment or discrimination complaint arises, the employer has an affirmative duty to investigate and take prompt remedial action in order to avoid or minimize liability. The perpetrator need not be another employee-they could be a customer, client, vendor or other third party.

UK: Same as France.

2. Who should conduct an investigation?

France: When the alert comes through an elected employee representative, the employer must investigate with the latter. Otherwise, there is no legal prescription. In practice, the investigation is conducted by the employer, a consultant or legal counsel.

U.S.: While there is no legal requirement as to who needs to conduct an internal investigation, in practice, the employer, through its Human Resources or legal function, or outside legal counsel typically conduct the investigation. If the alleged perpetrator is a senior executive or other high-profile member of the company, it may be prudent to have outside counsel conduct the investigation, both because of considerations of attorney-client privilege, and because using a third-party law firm experienced in conducting investigations of this nature buttresses the independence of the investigation. Regardless of approach, any person involved in the investigation should not be under the supervisory authority of the alleged harasser and should be well-trained in the skills required for interviewing witnesses and evaluating credibility.

UK: Same as above

3. Within what time period must an investigation be launched?

France: The internal investigation must be launched as soon as possible.

U.S.: An internal investigation should be launched quickly, although there is no prescribed time period.

UK: An internal investigation should be launched promptly; an affected employee typically has three months minus one day from the date of the incident to make a claim to an employment tribunal, which will expect the employer to have taken all reasonable steps to stop/prevent sexual harassment/discrimination.

4. What protective measures should be taken while an investigation is pending?

France: The employer should take any necessary measures to ensure that the alleged perpetrator is kept away from the alleged victim. These measures may include placing the alleged perpetrator or alleged victim on leave or on remote work while the investigation is pending, or proposing a modification to their employment contract to avoid interactions between them.

U.S.: Similar to the above. The employer should take immediate and appropriate action to stop the harassment/discrimination and to take appropriate corrective action. It is critical to ensure that neither the complainant nor anyone participating in the investigation is retaliated against as a result of the complaint being made and/or their participating in the investigation.

UK: Same as above.

5. Who may assist the employee with the interviews?

France: The interviewee does not have a right to be assisted during the interview. However, when the internal investigation is conducted by a lawyer, the interviewee should be offered the assistance of a lawyer (at the interviewee's expense unless otherwise agreed).

U.S.: Employees who are not represented by a labor union have no right to counsel during an internal investigation, absent a contractual agreement affording such a right.

UK: Same as France.

6. What language is to be used?

France: The investigation must be conducted in a language that the interviewee understands. To ensure that everyone understands, an interpreter may be used if the interviewee opts for it.

U.S.: Same.

UK: Same.

7. Who is to be interviewed?

France: While not all employees need to be heard, it is strongly recommended that the alleged perpetrator be interviewed.

U.S.: When detailed fact-finding is necessary, the investigator should interview the complainant, the alleged perpetrator and any third parties reasonably expected to have relevant information.

UK: Same as the U.S.

8. Are interview minutes mandatory?

France: Interview minutes are not mandatory, but without them, there will be no proof (other than the investigation report) of the interview or of any offense it may have revealed. If interview minutes are taken, they must always be objective. It is possible for the interviewed employee to request the minutes.

U.S.: As in France, interview memoranda or other written documentation of the interviews conducted are not mandatory but are strongly recommended and should be objective. They may serve as proof of the employer fulfilling its duty to take action, although, if conducted by counsel, may be largely or entirely privileged. Data privacy and collection rules may vary from state to state.

UK: Same as France.

9. Is a written report required? What are the best practices for the content of the report?

France: No written report is required. The report must answer the question that prompted the investigation. In practice, the report contains the circumstances leading up to the investigation, the protective measures taken, the people interviewed and recommendations. Depending on the circumstances, the report will or will not contain the analysis/qualifications of the facts.

U.S.: No written report is required, and whether to draft such a report and the scope of any such report should be discussed and agreed ahead of time with the client. Depending on the circumstances, a brief written summary of findings, or even an oral report may be advisable. Even if no determination can be made because the evidence is inconclusive, it may be prudent to include recommendations for best practices moving forward, including for example, additional preventive measures, e.g., training and monitoring that could be implemented.

UK: Same as the U.S.

10. How are the investigation and its report to be publicized?

France: The employer relies on the report to determine the outcome. The investigation's conclusions should be shared with the alleged victim and/or the employee allegedly responsible. The elected employee representatives may also be informed of the conclusions of the investigation and the recommendations for future preventive measures in a meeting. In practice, the full report is not shared.

U.S.: The complainant and alleged perpetrator should be informed of the determination, but to the extent there is a report prepared, it is generally advisable not to share it with parties other than the client in order to maintain attorney-client and/or work product privilege.

Depending on the circumstances, it may be advisable to release general information to employees about corrective and disciplinary measures undertaken in order to increase employees' confidence in the efficacy of the complaint process.

UK: Same as the U.S.

11. Within what time period must an investigation be acted upon?

France: The employer has a two-month period once the outcome of the investigation is released, provided they did not have the information enabling them to discipline the employee at an earlier time, to discipline the alleged perpetrator in case of misconduct.

U.S.: There is no statutorily defined time period.

UK: Same as the U.S.

Understanding these differences and similarities will help you effectively manage internal investigations across these jurisdictions. Should you have any questions or need further assistance, please do not hesitate to contact us.

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