Certain particularities must be observed if there is a suspected breach of compliance within a company and an employee interview is to be conducted for clarification.
An employment relationship may be terminated if it is suspected that the employee has severely breached his or her duties. Before the employer can issue notice of termination on grounds of suspicion, it must interview the employee.(1) The interview should not catch the employee off-guard and it is therefore advisable to announce the interview and specify its content – employees are obliged to participate in interviews if they are intended to clarify criminal offences in the company. In some cases, the employee may demand that a third party (eg, an employee representative or lawyer) be involved.
Recording the interview
Both parties in an employee or appraisal interview must observe the right to present their own views. The recording of interviews is prohibited and subject to punishment by law unless the employee agrees to the recording. Clandestine sound recordings are prohibited. It is impermissible for third parties to attend interviews as listeners or to follow the conversation via speakerphone without the knowledge of the affected party.(2)
Illegal recording of an interview could result in criminal penalties. However, cease-and-desist and compensation claims from affected employees will be considered and employers should therefore obtain employees' written consent to any recording in advance. If the employee refuses consent, several persons should attend the interview on the employer's behalf.
Summarising interviews is useful and should be countersigned by the attending employee so that he or she can be subsequently confronted with the statement if necessary.(3) However, the employer may summarise the course and consent of the interview.
The employee may refuse further participation in an interview if his or her personality rights are infringed. Such infringement may arise from the way in which the interview is conducted.(4) For example, interviews must not be structured so that an employee is confronted alone with a larger group of supervisors without having been informed in advance of the interview's content. In the invitation to the hearing – notably, if dismissal on grounds of suspicion is intended – the employer must indicate the subject of the hearing in order to allow the employee time to prepare.(5)
Duty of instruction?
The employee is not entitled to refuse to make a statement.(6) The employer is not obliged to give formal instructions as required in criminal proceedings.(7) The employer must not inform the interviewed party of his or her rights at the beginning of the interview or obtain permission to use further any statements made.
If the employee explicitly asks the employer about his or her rights, the employer should indicate the scope of the existing duty to provide information. The employer should always be mindful that its instructions are not to be understood as a threat, therewith nipping in the bud any employee willingness to make a statement.
If investigations are conducted in German companies because the US Securities and Exchange Commission or the US Department of Justice have initiated investigations concerning possible violations of the Foreign Corrupt Practices Act,(8) the employer should inform the interviewed employee of the option of the summaries being forwarded to US or German authorities. It should also point out that investigators act solely on behalf of the company (known as 'Upjohn warnings').(9)
Is the employee obliged to give precise answers to all questions? Or is the employee fulfilling his or her duties solely by attending the interview even without making a statement?
The employee's duty to provide information is derived from his or her duty of loyalty and the employment contract, which is why the affected party is not allowed to refuse completely to cooperate with the employer.(10) However, the employee may refuse to answer individual questions and breaches duty if he or she refers to memory gaps. However, the employer may refresh any memory gaps with documentation. In such case, the employee is obliged to answer.
Stricter requirements are placed on executive employees who lead organisational units and employees and have documentation duties. Such employees can be told specifically to answer questions about organisation and processes of their units and employees.
If the employee refuses to make further statements, the employer must not continue the interview to force a statement, otherwise infringement of the employee's personality rights could be assumed. The employer must therefore not schedule repeated interviews.
In the event of dismissal on grounds of suspicion, the employee must be heard before the notice of dismissal is issued. If the employer breaches such duty, the issued notice of dismissal is invalid. Exceptionally, if the employee was unwilling from the outset to comment on the accusations raised or to contribute to their clarification, there will be no infringement of the duty to hear the employee and the dismissal will be valid without a hearing.(11)
This also applies if, during the interview, the employee declares that he or she does not wish to comment on the accusations. In such case, the employer need not inform the employee of the suspicious circumstances in further detail.(12) If the employee is unwilling from the outset to make substantiated comments on the accusations and to contribute to their clarification, the hearing is superfluous. However, the employer is entitled to invite and interview the employee again to ask new questions.
If the employer infringes its duty to hear the employee it cannot refer to its suspicion of a criminal offence or conduct in breach of duties on the part of the employee in the proceedings.(13)
There is no codified prohibition regarding the use of unlawfully obtained evidence under civil procedure law. The issue arises in the event of encroachments on personality rights – for example, an individual's picture(14) or statement(15) and, in case of breaches of instruction duties in respect of proceedings,(16) codetermination rights,(17) data privacy protection provisions(18) and provisions of criminal law.(19)
The Federal Court of Justice and the Federal Constitutional Court both hold that unlawfully obtained evidence per se will not result in prohibition of its utilisation.(20) However, in the event of breach of individual rights protected under constitutional law, it can be assumed that such evidence cannot be used. Whether a piece of evidence can be used must, in principle, be decided by the court on a case-by-case basis when weighing interests and benefits.
In the employee interview the employer must observe the employee's general personality rights, otherwise it may be impossible to use the employee's statement. However, in certain cases the evidence may be used even though the employee's personality rights have been breached. What is determinative is the proportionality of the investigatory measure compared to the alleged violation and the degree of suspicion. Accordingly, in the case of serious criminal offences, minor breaches of personality rights will not preclude using an employee's statement.
A typical case of prohibition of evidence in civil procedure is a secret recording or statement from an eavesdropper who has clandestinely listened to a conversation.(21) Evidence is not used if confidentiality had been assured(22) or if use of a tape recorder was negated.(23)
Owing to the fact that employees are obliged to provide information regarding affected tasks and cannot refuse to make a statement, constitutional law requires that the information communicated to the employer during the interview must not be used in criminal proceedings against the will of the affected party.(24)
However, if the employee interview is conducted in accordance with common practice, no infringement of personality rights is likely. Personality rights are not infringed if the employer denies the employee's wish to be accompanied by a lawyer but the employee nevertheless comments on the employer's questions.
Whoever conducts internal investigations should know the particularities that result from the employee's weaker position. Therefore, the employer should prepare every employee interview carefully in order to be able to use the results at a later date.
For further information on this topic please contact Patrick Müller-Sartori or Martin Lützeler at CMS Hasche Sigle by telephone (+49 221 77 16 159) or email (firstname.lastname@example.org or email@example.com). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.
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