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WORKING IN SWITZERLAND

What happens if your Swiss employer places you under investigation?

What can you do if you are placed under investigation by your employer in Switzerland.

Published: 23 July 2020 11:06 CEST
Updated: 3 January 2024 17:09 CET
What happens if your Swiss employer places you under investigation?
What happens if you are placed under investigation in your workplace? Image: Pexels
You have been informed that you are subject to an internal investigation and you are in a state of panic? What are your rights before and during this investigation? What should you expect after the investigation? 

Geneva-based lawyer Renuka Cavadini from Page & Partners breaks down your rights at work if you are placed under investigation. 

Purpose of the internal investigation

The employer is obliged, in accordance with Art. 328 CO, to protect the personality of the employee. 

This duty obliges the employer to clarify any situation in which an employee is suspected of having violated rules/regulations and/or internal policies applicable to the company and to verify the facts reported, whether or not they are established. 

READ ALSO: Employee rights in Switzerland during the coronavirus: What you need to know 

Internal investigations have become common in multinational companies because of the increase in compliance concerning private or public corruption, sexual harassment, etc.

Although an employer can terminate an employee without a specific cause, as long as the former complies with the legal notice of termination, (“ordinary” termination), the termination may be considered abusive in certain circumstances.

These include firing the employee because he/she invoked his/her rights or termination due to accusations without any verification of the facts or allowing the accused to present his/her position. Therefore the internal investigation is necessary to establish the facts.

READ ALSO: Can your employer prevent you from attending nightclubs or travelling abroad? 

Although the purpose of the internal investigation is supposed to be to collect facts and the positions of each party, this can be delegated to former police officers or retired secret service agents, which can make the interrogation very aggressive, coercive and uncomfortable.

Is this a criminal investigation?

An internal investigation is in many ways similar to a criminal investigation. Whereas in the latter you fear the authorities and a criminal sanction or even a criminal record, in the former, you are even afraid to call a lawyer because you are worried about the financial stability of your family and you want to trust your employer.

However, you are entitled to a fair and impartial process. 

Your rights before the interrogation 

– To know all the charges that you have been accused of (including receiving copies of relevant policies and procedures);

– To have access to your personal data file (including complaints filed against you, your employment agreement, personal evaluations, your HR file)

In practise, this information is often provided in a piecemeal manner to limit your knowledge of the situation before they begin the interrogation.

It is important to send emails showing your requests for information and pointing out what you have not been provided with.

At this stage, we highly recommend that you contact your legal protection insurance and request that they accept to appoint a lawyer for you or accept your lawyer so that you are well accompanied throughout the process.

What happens if you are placed under investigation in your workplace? Image: Pexels

Present the facts to the lawyer and go through a mock interrogation to prepare yourself for the real interrogation.

Choose a lawyer that has flexible hours because your interrogations could begin early in the morning and end late at night. You may want to discuss the proceedings of the day with your lawyer if you have decided to keep a lawyer behind the scenes.

The pressure you are under during such an investigation, with sleepless nights, can make you confuse facts, admit to things you have not done, simply because you are exhausted mentally and physically. It is therefore important to insist on the breaks, not have days which are too long and not reply when you are not sure.

Your rights during the interrogation 

– To be accompanied by a lawyer and/or a trusted person, who will act as counsel and/or witness, should there be a discrepancy;

-To insist on the minutes of the meeting being transcribed and not recorded. This allows you to make corrections at the end of each session. The recording of the interrogation is not possible without your consent.

– To take notes and ask for as many breaks as you may need.

 – To provide useful documents or papers as evidence for allegations made against you.

– To remain silent during the internal investigation or even insist on replying once you have examined the policy, procedure or email that is being referred to.

 -To ask for access to all your emails, personal files etc. which will allow you to counter the allegations made against you.

– Ask and obtain the interrogation of persons that could be witnesses in your favour.

– Ask and obtain a copy of the minutes of the meeting to provide a final written statement to be provided to the persons who will make the final decision concerning the investigation. This statement should point out all the breaches of procedures during the investigation (which are very frequent unfortunately). The support of a lawyer for this written statement should not be underestimated.

The investigators are not supposed to threaten or coerce you during the investigation. If the threat or coercion is established in writing, it may be the subject of a criminal complaint against your employer.

The outcome of the investigation?

If it is established that there was no misconduct or that it is not serious, then the matter will be closed and the you will remain within the company.

If the offending conduct is not serious, you may be warned to stop the offending conduct. 

The employer can decide to terminate you with immediate effect he/she believes there are sufficient grounds to establish the serious misconduct. If the employer considers that the misconduct is not serious but is sufficient to break the bond of trust between you, then there will be ordinary termination. 

Conclusions

The use of an internal investigation has become a relatively common procedure in both private and public structures, without the concerned employee knowing what to expect, how to prepare for it and its outcome. The employee who is subject to an internal investigation is therefore advised to consult a lawyer to assist him or her (on or behind the scene) before and throughout the process.

The wording used by the employee in his/her emails to the investigators, makes them realise the presence of a lawyer and forces them to comply with legal procedures. The breaches of procedures which are pointed out can guarantee a generous termination package for the employee in case of termination, to avoid litigation.

Therefore, do not underestimate the importance of having a lawyer during such proceedings.

 

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WORKING IN SWITZERLAND

The pitfalls of Switzerland’s social security system you need to avoid

In most cases, Switzerland’s social benefits system functions well. But there are also some loopholes you should know about.

Published: 24 April 2024 13:37 CEST
The pitfalls of Switzerland's social security system you need to avoid

The Swiss social security system has several branches: old-age, survivors’ and disability insurance; health and accident insurance; unemployment benefits, and family allowances.

This is a pretty comprehensive package, which covers everyone who pays into the scheme for a wide variety of ‘what ifs’.

As the government explains it, “people living and working in Switzerland benefit from a tightly woven network of social insurance schemes designed to safeguard them against risks that would otherwise overwhelm them financially.” 

But while most residents of Switzerland are able to benefit, at least to some extent, from this system, others don’t.

What is happening?

If someone becomes ill or has an accident, Switzerland’s compulsory health insurance and / or accident insurance will cover the costs.

However, a prolonged absence from work can become costly.

That is especially the case of people employed by companies that don’t have a collective labour agreement (CLA), a contract negotiated between Switzerland’s trade unions and employers or employer organisations that covers a wide range of workers’ rights. 

READ ALSO: What is a Swiss collective bargaining agreement — and how could it benefit you?

It is estimated that roughly half of Switzerland’s workforce of about 5 million people are not covered by a CLA.

If you just happen to work for a company without a CLA, your employer is not required to pay your salary if your illness is long.

You will receive money for a minimum of three weeks – longer, depending on seniority — but certainly not for the long-haul.

You may think that once your wages stop, the disability insurance (DI) will kick in.

But that’s not the case.

The reason is that DI can be paid only after a year after the wages stop. In practice, however, it sometimes takes several years of investigations and verifications to make sure the person is actually eligible to collect these benefits, rather than just pretending to be sick. 

In the meantime, these people have to use their savings to live on.

What about ‘daily allowance insurance’?

Many companies (especially those covered by a CLA) take out this insurance, so they can pay wages to their sick employees for longer periods of time.

However, this insurance is optional for employers without a CLA is place.

As a result, small companies forego it because it is too much of a financial burden for them.

And people who are self-employed face a problem in this area as well: insurance carriers can (and often do) refuse to cover people they deem to be ‘too risky’ in terms of their age or health status.

Critics are calling the two situations —the length of time it takes for the disability insurance to kick in and gaps in the daily allowance insurance—”perhaps the biggest failures of the social security system.”

Is anything being done to remedy this situation?

Given numerous complaints about the unfairness of the current system, the Social Security and Public Health Commission of the Council of States (CSSS-E) will look into the “consequences of shortcomings and numerous dysfunctions in long-term illness insurance.”

But not everyone in Switzerland sees a problem in the current situation.

According to the Swiss Insurance Association (SIA), for instance, “making daily sickness allowance insurance compulsory for employers would not have the desired effect. Due to false incentives, it would only exacerbate the upward trend in costs and premiums.”

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