Introduction
Legal foundations of interviews
Employee's duty to furnish requested information
Employees' right to remain silent?
Employer's right to ask questions
Comment


Introduction

If suspicion of a criminal offence committed in a company arises, employers in Germany will wonder what they can do to investigate. Internal investigations to clarify the facts have proved successful in affected companies and are increasingly being proposed, or even demanded, by the Public Prosecutor's Office. They facilitate rapid access to information and provide indications for further investigation – whether merely as a result of what has been said or not said in passing, implications or a refused answer. However, when conducting interviews the employer must be aware of its legal limits under German law. This update presents the legal foundations of an employee's duty to furnish the requested information and the employer's right to ask questions.

Legal foundations of interviews

The interview or hearing of the employee accused of a breach of duty or who is being interviewed within the framework of investigating the facts of the case is an employee interview between the employer and the employee. The content and purpose of an interview of this kind are diverse; an employee interview can cover all areas of the employment relationship. An employee interview can:

  • motivate employees for specifying and assessing work tasks or performance targets;
  • further professional development; or
  • modify the contract for clarification of facts of the case.

Employee's duty to furnish requested information

There are no statutory provisions regulating the content of employee interviews and mutual rights and duties; in particular, the duty of an employee to furnish relevant information during an interview.

An employee is subject to ancillary obligations within the framework of the employment relationship and on the basis of the employment contract. The ancillary obligations also include informing the employer about important events (ancillary obligation to provide information). For example, an employee is obliged to notify the employer not only of forthcoming or impending damage, but also of corporate nuisance, violations of law or criminal offences. This is not limited to the individual working area of the employee. Accordingly, for example, an employee is obliged to report to the employer the origin of:

  • a fire;
  • an accident;
  • a violation of occupational health and safety rules;
  • a burglary; or
  • fraud to the detriment of the employer.

The employee must also disclose the misconduct of other employees and colleagues, at least in the event of severe breaches of duty and if there is a risk of repetition. The extent of the duty to supply information depends on the employee's:

  • position in the establishment;
  • job; and
  • seniority.

Employees in management positions have more extensive duties because they are tasked particularly with leading and monitoring their subordinate employees. In addition, they hold a particular position of trust and must thus inform the employer more extensively.

However, the employer's right to issue directives is regulated by statute. Such a right authorises the employer to assign work tasks to the employee. The employer may also instruct employees to furnish detailed information about their working area and performance. These are referred to as contractual duties to report. In this regard, employees must report all breaches that they have knowledge of within the scope of their duties and responsibilities. Protection from having to accuse oneself is rejected in the area of contractual duties to report; so too is confidentiality in favour of third parties. The reason for this is that the employer would otherwise no longer be able to monitor the employee's performance.

Consequently, if employees commit breaches of duty or criminal offences within the scope of their duties or discover them within the framework of their work tasks, they must – on the grounds of their contractual duty to furnish information – inform the employer. For example, a company buyer must provide information about paid bribes or accepted commission, or a driver must furnish information about rest periods or traffic offences if the employer is unable to access the tachograph. A sales representative must explain to the employer whether he or she locked a stolen company car. In all of these instances, the employer has a legitimate interest in the employee providing true and comprehensive information, which regularly outweighs the employee's right of personality.

An employee must, in any case – to the extent that his or her working area is concerned – furnish information to the employer without restrictions. Outside their working area or with regard to discoveries they make accidentally during their work, employees are obliged to provide information within the framework of their duty of loyalty if the employer's interests take precedence, without employees having to incriminate themselves.

The ancillary obligation to furnish information and the contractual obligation to provide information form the basis of an employee interview during an investigation.

Employees' right to remain silent?

If the employee is obliged to furnish information, the question arises as to whether this is reconcilable with the constitutional nemur tenetur principle anchored in the general personality right (ie, the right not to have to incriminate oneself), because this principle is not limited to criminal proceedings. The Federal Constitutional Court has ruled that this principle does not affect private duties to provide information. In the interest of non-governmental persons and bodies, the German legislative body upholds that there is an unrestricted duty to furnish information which can be fulfilled by using civil law coercive measures. If the employer interviews employees, the employees may thus not remain silent on the grounds of the right to remain silent, but must furnish information, even if in so doing they incriminate themselves.

Employer's right to ask questions

Corresponding to the employee's duty to furnish information, the employer has a right to ask questions. Thus, the employer can, for example, interview a purchasing agent about impermissible gifts or other accepted benefits, or blood ties to customers or principals. Also, a controller who is suspected by the employer of having booked unauthorised invoices can be interviewed about this by the employer without restriction. Moreover, the employer can interview any employee about the circumstances of an exercised ancillary activity that might affect the employer's interests.

If employees are not obliged to answer questions outside their field of work, they may remain silent – but they have no right to lie. The reason for this is that the employer's question is not impermissible as long as the employee's personal rights are not infringed due to the employer's interests taking precedence. Thus, a question put to a buyer about a family relationship to a customer would be permissible, but a question about a love affair would not. In the latter case, one may also allow the employee an untrue answer. Accordingly, employers would be well advised to check questions in advance of an interview so as to exclude any impairment of an employee's personality right.

Comment

German law grants employers multi-faceted powers to satisfy requests for information within the framework of the right to issue directives or under the fiduciary relationship that has arisen on the basis of the employment relationship. Even in cases in which the employer's interest in information collides with an employee's personality right, the courts take an employer-friendly position.

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), fax (+49 221 77 16 332) or email ([email protected] or [email protected]). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.