In recent years, employers have seen a significant increase in claims of discrimination and harassment in the workplace, prompting them to take effective steps to comply with their legal obligation to protect their employees’ health and safety. While balancing the requirements to ensure a safe work environment, employers also face situations where employees challenge the effectiveness of the measures taken.

In its Framework Decision issued on February 5, 2025, the Défenseur des droits provided guidance to employers who resort to internal investigations as a means of safeguarding the employees’ rights, while also reminding them that no obligation arises if no further investigation is necessary to ensure employee protection.

The main prerequisite for conducting an effective investigation is to implement a reporting system that has been clearly communicated to employees in advance, ensuring the confidentiality and efficiency of the investigative process. Accordingly, the complaint should be promptly acknowledged, employees should be invited to recount the facts in writing, and to provide all their evidence to support their complaint.

It is best practice for employers to then initiate a fact-finding process aimed at classifying the claims appropriately to identify potential implications based on the nature of the allegations. Upon receiving the complaint, it is important to consider whether protective measures should be implemented to safeguard the reporting individual, secure evidence and minimize any potential risks. An investigation may be necessary, particularly when the facts are complex, and fact-finding is essential to ensure workplace health and safety.

Before the internal investigation

Scope

At the outset, defining the scope of the investigation is important, as it guides the investigator in identifying the key facts and documents to examine that will help uncover the reality of the alleged facts.

Depending on the type of information and documents to be reviewed, it is prudent to ensure that the applicable statutory provisions permit such a review, particularly when it may infringe on an employee’s right to privacy or involve handling and transferring sensitive personal data abroad. Accordingly, the employers should ensure that the employees’ rights are protected throughout the investigation. Often, there will be times when carrying out an internal investigation will involve conducting employee interviews, in which case, preparing the list of employees to be interviewed as well as the questions to be asked to uncover the facts is a prerequisite to further investigate the alleged misconduct.

Timing

Responding swiftly to serious allegations is just as crucial as structuring the key steps of the investigation process. Establishing a projected timeline of events helps maintain awareness of the time required to complete the internal investigation.

In addition, when the investigation requires reviewing specific emails, it is important to be mindful of the company’s retention policy, if any, to ensure that all documents that need to be consulted during the investigation are still available. Depending on the facts alleged, it would be necessary to act quickly, especially if the facts could be time-barred if the employer fails to take disciplinary actions within the applicable statute of limitations.

Being impartial and independent

Some companies rely on their internal investigation team to investigate the reported facts, while others turn to external experts, including lawyers. Regardless of the situation, the investigation should be conducted impartially.

When choosing the investigator, selecting an individual that is independent and that has no conflicts of interest can help to ensure that the results will be objective and mitigate the risk of any dispute. To encourage transparency in the investigation process, involving employee representatives may be legally required, particularly in certain European countries. In some instances, their involvement can also strengthen the investigation process.

Throughout the internal investigation

Ensuring the confidentiality of the investigation is important to protect the integrity of the investigation process. However, when carrying out an internal investigation, different interests are at stake between uncovering the truth and protecting the identity of the reporting individual, particularly when they chose to remain anonymous.

It is important to remind employees, before and after the interview, that any act of retaliation will be  reprimanded in accordance with the applicable company policies. To limit the chance that the investigation is not conducted without any interference or undue influence, it is preferable to interview first the reporting individual, and the subject of the investigation last.

During the investigation, the facts are yet to be established; accordingly, the investigator should remain neutral and give the subject the opportunity to address the alleged facts. The investigation should not be recorded unless it is permitted under the applicable rules and regulations, and subject to the employees’ prior written consent for evidence purposes.

Sometimes, it might be necessary to involve more than one person to investigate the matter, especially in cross-border investigations, when cultural and language aspects need to be considered or when there are legal considerations related to the specific witness to be interviewed, which do not fall within one of the investigators’ legal expertise. When dealing with an investigation spanning multiple jurisdictions, having more than one person is particularly important to navigate these complexities effectively.

Each witness interview should lead to preparing an interview report recounting the process followed, the line of questioning as well as the answers provided by the witness. When the statements are taken verbatim, the witness should sign the interview report to attest to its veracity. The investigator should document all the steps taken during the internal investigation to provide a thorough investigation report.

After the internal investigation

The reporting individual and the subject of the investigation should be informed of the findings of the investigation. However, the report should not be shared in order to preserve the confidentiality of the investigation, and to prevent the dissemination of personal data. Depending on the applicable jurisdiction, delivering the final investigation report will trigger a new statute of limitations, which would give employers additional time to take specific measures.

Other questions should be about the appropriate retention period for the investigation report, especially when it includes personal data or to take into account foreseeable disputes.

Once the investigation has been completed, it is important to take the requisite measures, a process that can, at times, prove to be particularly challenging for organizations. It can involve taking protective measures to safeguard the reporting individual’s health and safety, enforcing the anti-retaliation policy or rehabilitating the individual accused of the alleged incident.

Furthermore, it is important to ensure that team morale is maintained following the conclusion of the investigation to avoid feelings of exclusion or retaliation. The conclusion of the investigation can also serve as an opportunity to update internal policies, provide training and coaching sessions as appropriate. Finally, the initial facts reported could also uncover another misconduct and/or non-compliance which would prompt the employer to initiate a new internal investigation.

A further warning to the highly regulated financial services sector, where investigations will not only be conducted into allegations of discrimination or harassment but can also involve noncompliance, conflict of interests, insider trading or data security. These matters can entail severe reputational damages for the organization concerned, particularly in case of misappropriation of funds and breach of the financial rules. Therefore, it is advised that these organizations should undertake a well-structured approach with strategic planning to investigate the matter and prepare a thorough communication plan for engaging with internal and external stakeholders where necessary.