Cross-Border Workplace Investigations: When One Approach Doesn't Fit Every Jurisdiction
Cross-Border Workplace Investigations: When One Approach Doesn't Fit Every Jurisdiction
An allegation of employee misconduct may arise in one country, involve employees or management in another, and ultimately require action in several jurisdictions. What begins as an effort to establish the facts can quickly become a complex exercise in reconciling different legal requirements, investigative procedures, and expectations about how the findings will be used.
For multinational employers, decisions about who conducts interviews, what information can be collected, how evidence is shared, and whether a report can support disciplinary action may all depend on the jurisdictions involved. An approach that is appropriate in one country may create legal exposure or undermine the intended outcome in another.
These challenges were explored during a joint discussion of World Law Group's Labor & Employment and Compliance & Investigations Groups, moderated by Suganthi Singam of Shearn Delamore & Co. (Malaysia). Member firm lawyers shared their experiences managing cross-border investigations and the importance of understanding local requirements before investigative work begins.
When Investigating Misconduct Creates Additional Compliance Risks
The process used to uncover potential wrongdoing can itself create compliance concerns. Marina Bousso of TozziniFreire Advogados (Brazil) described how employee interviews, access to corporate devices, collection of personal communications, and transfers of evidence can raise different legal questions depending on where employees and information are located. For multinational companies, the challenge is maintaining a coordinated investigative strategy without violating local requirements or creating exposure before another regulator.
Germany illustrates how these requirements can affect both an investigation and the employer's subsequent actions. Jan Patrick Vogel of Taylor Wessing (Germany) emphasized the significant role of works councils, employee representative bodies that have consultation and, in certain matters, co-determination rights over workplace decisions and practices. Depending on the investigative measures involved, employers may need to involve the works council before proceeding.
Data protection requirements are equally important. Vogel cautioned that the urgency surrounding serious allegations can lead companies to overlook privacy safeguards, potentially creating a new violation while investigating another. Even when misconduct is established, German employment protections must still be considered before disciplinary action is taken. Labor courts independently assess whether a dismissal is justified, regardless of findings or expectations imposed by foreign regulators.
The relationship between multinational headquarters and local subsidiaries can introduce further complications. Olga Kyriusha of Sayenko Kharenko (Ukraine) explained that foreign shareholders investigating misconduct within Ukrainian subsidiaries sometimes seek to direct local employees themselves. Although the businesses may operate as part of the same corporate group, Ukrainian employment law treats them as separate entities, limiting the ability of foreign shareholders to issue instructions directly to local employees.
Together, these examples demonstrate why a company's internal investigation procedures cannot simply be applied across jurisdictions without considering local employee rights, data protection requirements, and the authority of those conducting the investigation.
Ensuring Findings Can Support the Intended Outcome
Understanding local requirements is particularly important when investigative findings may lead to disciplinary action. Establishing what happened is one objective; ensuring that the findings can support the employer's intended response is another.
Gabriela Lima of TozziniFreire Advogados (Brazil) shared an example involving an individual employed by a multinational company who initially worked in one country before transferring to the company's operations in another. The individual subsequently accepted an offer for a new position within the same company that would involve returning to the original country of employment. Before that return took place, however, a complaint emerged concerning conduct during the earlier period of employment in the original country, prompting an investigation with potential consequences for both the current employment agreement and the planned return.
Although the allegations concerned conduct in the original country, the individual was now employed in another jurisdiction. Lima therefore consulted local counsel in that jurisdiction before beginning the investigation to understand what would be required for the findings to support an employment decision there.
That consultation revealed an important procedural difference. Under the approach Lima would ordinarily follow, disclosure of the specific allegations to the individual under investigation would not necessarily be required. Counsel in the other jurisdiction, however, advised that such disclosure was necessary for the findings to support a subsequent employment decision.
By identifying this requirement before proceeding, Lima could account for the legal requirements of both jurisdictions and avoid potentially compromising the usefulness of the investigation's findings.
Questions of legal privilege and investigator independence can further complicate how findings are obtained and used. Jenny Tsin of WongPartnership (Singapore) described a cross-border investigation in which external counsel engaged a barrister to conduct interviews and prepare an independent report, rather than having the advising solicitors undertake the fact-finding themselves.
Rachel Morgan of Al Tamimi & Company (UAE), who previously practiced in the UK, drew on that experience to explain how the purpose of an investigation can affect the treatment of its findings. She described the distinction between investigations conducted to provide confidential legal advice, which may be protected by legal professional privilege, and those intended to produce findings that can be used in disciplinary proceedings. Where a report is privileged, relying on it in a disciplinary process could require that protection to be waived, potentially exposing the report and related documents.
These differences underscore the importance of determining at the outset how the findings will be used, who should conduct the investigation, and how reports and related information should be handled.
Coordinating Investigations Across Jurisdictions
Procedural differences also affect how responsibilities are allocated among headquarters, local management, and external counsel. Gaël Chuffart of CMS Belgium described how in Belgium lawyers may conduct workplace investigations directly, including employee interviews and preparation of reports, while operating outside certain requirements applicable to other investigators.
By contrast, Ronald Mark C. Lleno of SyCipLaw (Philippines) explained that workplace sexual harassment investigations in the Philippines must be conducted by an internal Committee on Decorum and Investigation. Outside lawyers may advise the committee but cannot conduct the investigation themselves.
Beyond determining who may investigate, lead counsel must establish a clear scope and maintain communication as the matter develops. Tsin emphasized the importance of agreeing on the allegations and factual questions to be examined, while recognizing that interviews and document reviews may uncover additional issues.
An investigation into a particular allegation of bribery, for example, may reveal other potential misconduct. Whether to expand the investigation depends partly on the client's objectives, but new findings may also trigger separate regulatory or criminal reporting obligations. Decisions about scope therefore require continued consultation among the client, lead counsel, and lawyers in the relevant jurisdictions.
Maintaining consistency in the investigative process is equally important. Chuffart emphasized preparing clear, open-ended interview questions and following an agreed approach with each interviewee to support the credibility of the resulting report.
Preparation Before the First Interview
A recurring theme throughout the discussion was the value of involving local counsel early, particularly when clients are pressing for immediate action in response to serious allegations.
Reflecting on previous investigations, Vogel said he would devote more time at the outset to identifying the relevant jurisdictions, involving the appropriate lawyers, and agreeing on the scope and investigative steps before proceeding.
Tsin similarly emphasized the need to establish the client's objectives, understand the applicable legal frameworks, and put appropriate confidentiality and privilege protocols in place. These decisions become especially important when information must be shared among lawyers and employees across borders.
The discussion also considered opportunities to improve efficiency. Chuffart described how his team has begun using AI to assist with interview summaries and investigation reports, subject to appropriate consent and disclosure, helping reduce the time and costs associated with preparing findings.
While investigative practices and legal requirements differ considerably, the experiences shared by WLG lawyers pointed to a common consideration: an investigation's effectiveness depends not only on establishing the facts, but also on how those facts are gathered, documented, and ultimately used.
Early coordination, clearly defined objectives, and an understanding of local requirements can help multinational employers avoid procedural missteps and ensure that their investigations support the decisions they need to make.