If the Labor code does not impose on an employer to conduct an internal investigation when an employee reports to them the existence of a risk situation (discrimination, psychological or sexual harassment, gender-based wrongdoings, etc.) the circumstances often compel them to do so, all the more since a decision recently rendered by the French Supreme Court (Cour de cassation) reinforces this necessity.
By a decision rendered on 27 November 2019, the employment division of the Cour de cassation indeed stated as a reminder that any employer had to, pursuant to their obligation to prevent occupational risks, conduct an investigation in the event of psychological harassment acts being reported, even if such acts are in the end not demonstrated (Cass. Soc. 27 November 2019, No. 18-10.551).
This investigation does not necessarily have to follow a given procedure or a specific formalism, as was shown by another decision rendered by the Cour de cassation on 8 January 2020. In this case, an employee had been dismissed for serious misconduct due to psychological wrongdoings towards all of his colleagues divided into two services. The court of appeal had decided that the dismissal lacked a real and serious cause, because the internal investigation did not meet the exhaustiveness and impartiality requirement, since all of the employee’s colleagues had not been questioned. The employment division of the Cour de cassation quashed the decision of the court of appeal and refused to dismiss the results of the internal investigation (Cass. Soc. 8 January 2020, No. 18-20.151). An employer may thus limit the number of interviews in connection with an investigation, even if they had often better question as many employees as possible in order to better understand the situation and refine the potential measures to be taken. Obviously, the more rigorously an investigation will be conducted, the more protected an employer will be in case of later litigation. If the internal investigation is sometimes conducted by an internal cell or by people specialized in psychosocial risks, we note that it is more and more often externalized to a lawyer who, due to their technical skills, status and professional ethics, will be able to conduct it peacefully and confidently. A lawyer will do so even better because he is independent, outside the organization and will act in full confidentiality and neutrality, which can sometimes turn out to be delicate for the human resource teams.
The Paris Bar Council by the way already dealt with this subject, since, by a deliberation dated 8 March 2016, it considered that “the internal investigation (entered) the lawyer’s professional scope”, and then adopted a “Vade mecum for the lawyer in charge of an internal investigation”, which was included, on 13 September 2016, in the Paris Bar Internal Rules by the creation of Annex XXIV, last modified in December 2019.
The protection of the parties involved in an internal investigation essentially rests on the fact that “a lawyer in charge of an internal investigation must observe, in any circumstances, our essential principles”, and notably those “of conscience, independence, humanity, loyalty, delicacy, moderation, skill and prudence”. The lawyer’s presence in addition brings a guarantee of independence and of professional secrecy towards the client.
If the internal investigation does not have to follow a mandatory procedure, according to us, a certain methodology should however be complied with and, together with the company’s representatives, a certain number of questions should be raised:
- Preparation of the investigation: what do we know at this stage? Who will take part in the investigation? Who are the persons to be interviewed and what are the questions to ask them? In which place should the interviews be organized?
- Progress of the investigation: can the interviewed persons be assisted? Can documents be collected? Will the exchanges be transcribed or recorded?
- Conclusion of the investigation: what shall be the form of the report? To whom shall the conclusions be communicated? What further action and potential sanctions shall be taken?
Whatever the result of the investigation, with or without the staff representatives’ participation, the employer will have investigated and will have thereby met their reinforced safety obligation of means. The internal investigation thus constitutes a tool that human resource managers should not hesitate to use to ease tensions, bring transparency among teams and bring to light, as the case may be, situations or behaviors that shall be put an end to.
