A. Introduction

The Swiss Federal Supreme Court’s January 19, 2024 decision, which was published on February 12, 2024, concerns an internal investigation into sexual harassment allegations against an employee. In that context, the Court assessed whether the internal investigation, which confirmed a reasonable suspicion of sexual harassment and ultimately led to the employee’s dismissal, had been conducted properly.

The key rulings from the Court’s decision are:

1. When private employers perform internal investigations, the standard criminal procedural guarantees do not apply;
2. Employers do not need to provide an employee subject to investigation with advance notice of an interview or an opportunity to prepare. Rather, it suffices if the employer informs the accused employee at the beginning of the interview of its purpose and content;
3. The absence of a «person of trust» at the interview does not constitute a serious deficiency in the investigation process that would render the employee’s termination abusive, even if an employer’s internal regulations entitle employees to be accompanied by a «person of trust» at such interviews;
4. Employers are not required to inform the accused employee in detail of the allegations against him or her. Generic and anonymized information about the allegations is sufficient;
5. A reasonable suspicion, confirmed by an internal investigation, is sufficient basis to ordinarily terminate an employee lawfully even if the suspicion is later proven to be unfounded. Before terminating an employee, the employer is not required to prove the truth of the allegations.

The Court’s ruling rejects the views previously expressed by some legal scholars that employers must provide employees subject to investigation the procedural guarantees accorded to the accused person in criminal investigations.

B. Summary of Facts and Procedural History

As noted above, the case concerned an internal investigation regarding allegations of sexual harassment at a bank. Employee A contacted the bank’s ombudswoman for conduct and ethics and reported sexual harassment by Employee B. The bank conducted an internal investigation to clarify the sexual harassment allegations. As part of the investigation, several employees, including Employee B, were interviewed. The internal investigation concluded that there was sufficient basis for a reasonable suspicion that Employee B had sexually harassed Employee A. As a result, the bank terminated Employee B by observing the applicable notice period.

Employee B then brought a claim for unfair dismissal and damages. The Zurich Labor Court rejected the claim. It held that it was irrelevant whether the allegations of sexual harassment were true or not. Rather, the only relevant factor was whether the bank had sufficiently investigated the allegations. The Labor Court found that it had.

Employee B appealed to the High Court of the Canton of Zurich, which concluded that the bank had not afforded Employee B an adequate opportunity to defend himself against the allegations. In particular, it focused on the lack of detail provided by the bank regarding the allegations, which, according to the High Court, prevented Employee B from adequately defending himself and, in particular, from providing exculpatory facts and evidences. The High Court therefore held that the termination was abusive.[1]

Thereafter the bank appealed to the Swiss Federal Supreme Court, which overturned the High Court’s decision.

C. Findings of the Swiss Federal Supreme Court

1. No equivalent procedural guarantees as in criminal investigations

The Court’s decision clarifies uncertainty respecting the law applicable to internal investigations in private companies. In a case from May 2016,[2] the Court quoted legal scholars who expressed the view that in internal investigations, employers had to provide accused employees with procedural guarantees equivalent to those of a criminal proceedings (i.e., a right to prepare for the defense, be represented by a lawyer, and request the taking of evidence).[3] As a result, following the Court’s May 2016 decision, it was unclear what procedural guarantees, if any, were required in internal investigations. In its recent decision, the Court clarified that its 2016 ruling merely reproduced the views expressed by some legal scholars but did not endorse them.[4]

The Court further explained that, unlike in a criminal proceedings, in which an accused person is subject to the state’s criminal power and may face criminal liability (including imprisonment and fines), employees and employers voluntarily enter into an employment relationship and the worst threat an employee can face is termination.

According to the Court, the bank’s internal investigation provided adequate protections for Employee B because the bank interviewed several employees, reviewed Employee B’s electronic communications, and provided Employee B an opportunity to comment on the minutes of his interview.

2. No obligation to announce the purpose and the content of the interview in advance

The Court held that, unlike in criminal proceedings, employers are not required to inform employees in advance of the purpose and content of an internal investigation interview. Rather, it is sufficient if the employee is informed at the beginning of the interview of its purpose and content. There is no legal requirement to provide the employee with an opportunity to prepare for the interview.[5]

3. No right to be accompanied by a «person of trust»

The Court held that the absence of a «person of trust» at the interview does not constitute a serious deficiency in the investigation process that would render the employee’s termination abusive, even if an employer’s internal regulations entitle employees to be accompanied by a «person of trust» at such interviews.[6]

4. Right to have the allegations clarified

The Court confirmed that the internal investigation of a private employer is not comparable to a state criminal investigation and that therefore the employer is not required to inform the employee in detail of the allegations against him or her. Rather, generic and anonymized information about the allegations is sufficient. The Court also explained that accuser’s identity must be kept confidential and may not be disclosed to the accused employee.

5. Ordinary termination due to reasonable suspicion is not abusive

The Court’s ruling reminded that Swiss employment law is governed by the principle of freedom of termination. This means that there are no particular reasons required for an ordinary termination of the employment relationship.

Accordingly, unlike in criminal proceedings, in which there can be no conviction unless the alleged crime is proven beyond a reasonable doubt, an employee may be terminated based on mere suspicions, even if the suspicions later turn out to be unfounded.

Employers still have an obligation to establish that their suspicions are reasonable before terminating their employees. Termination may be abusive if based on mere allegations absent an adequate investigation to ascertain the trustworthiness of the allegations, or if the investigation fails to establish a reasonable suspicion that the allegations are indeed true.[7]

[1]        OGer ZH LA210022 of May 23, 2023.

[2]        BGer 4A_694/2015 of May 4, 2016, E. 2.4.

[3]        BGer 4A_694/2015 of May 4, 2016, E. 2.4.

[4]        BGer 4A_368/2023 of January 19, 2024, E. 4.1.

[5]        BGer 4A_368/2023 of January 19, 2024, E. 4.4.1.

[6]        BGer 4A_368/2023 of January 19, 2024, E. 4.4.2.

[7]        BGer 4A_368/2023 of January 19, 2024, E. 4.2.