Arbeitsrechtliche Aspekte von Internal Investigations

White collar crimes in your own company present you with a variety of complex legal problems. As a rule, it is crucial to first clarify the relevant facts.
Own investigative work through so-called internal investigations often promises advantages with regard to possible later sanctions by the law enforcement authorities (cooperation bonus). In addition to criminal law aspects, which particularly concern communication with the responsible public prosecutor's office, a variety of labor law aspects must be taken into account in internal investigations. Internal investigations are therefore becoming increasingly important in the practice of employment law consultants.
In the following, some key topics in internal investigations will be examined from a labor law perspective. These are employee interviews and email evaluations, which regularly play an important role in internal investigations, as well as the consequences under labor law when identifying serious breaches of duty, in particular extraordinary termination. In addition, the implications under works constitution law should be addressed, i.e. the participation rights of the works council that must be taken into account in individual cases.
Employee interviews
Your own employees are often an important source of information in internal investigations. An essential part of clarifying the facts is therefore the interviews with employees who were involved in the respective matter.
In principle, the employee is obliged to take part in an employee interview as part of an internal investigation. The employer can order this participation using the employer's right of direction. The employee interview regularly concerns the employee's own work area. The employee is obliged to provide information about this to the employer. An instruction to take part in an employee interview should generally correspond to reasonable discretion. It is not apparent that the employee has overriding interests that could lead him to refuse to take part in a conversation. Rather, the employer's interest in clarifying the facts of compliance violations prevails.
The employee is also obliged to describe the facts completely and truthfully in the employee interview. Whether the employee has a right to refuse to testify, analogous to the rights to refuse to testify under Sections 50, 55 StGB, Sections 383, 384 ZPO, if he would burden himself or a close relative with the consequences of a criminal investigation, has not been decided in the case law and in the controversial in labor law literature. However, there is likely to be a strong argument for granting the employee such a right to refuse to testify. In this case, it is again controversial whether the employer should inform the employee about these rights to refuse to testify before the interview begins. From our point of view, an employer is well advised not to take any legal risks and to provide appropriate instructions.
The question of whether the employee has the right to call in a “witness advocate” is also unclear. Both a works council member and representation by a lawyer come into consideration here. Although there is currently no case law that grants the employee such “witness assistance”, the employer would probably be well advised to provide the employee with support from a works council member or a lawyer. In any case, with regard to a works council member, there is also a legal reference to this in Section 82 Paragraph 2 Sentence 2 BetrVG, although this norm is not directly applicable to employee interviews in internal investigations. If the employer conducts the employee interviews with the support of a lawyer, the principle of equality of arms argues for granting the employee this right as well. Ultimately, however, it is crucial that the employer should avoid risks of legal violations as far as possible during employee interviews. This is already in your own interest in order to prevent any later undesirable legal consequences such as bans on the use of evidence. Experience also shows that the practical results of employee interviews are better if the employee can (as far as possible) move in a safe environment.
Again, it is a good idea to point out to the employee before the interview that he or she is granted such a right. Otherwise, there may be a risk that the conversation will be broken off during the course of the employee interview if the employee requests a “witness assistance” at this point and otherwise refuses to continue the conversation.
If a company establishes general principles for conducting employee interviews, the works council's mandatory right of co-determination in accordance with Section 87 Paragraph 1 No. 1 BetrVG also comes into question. Such general principles could then only be implemented in a binding manner with the prior consent of the works council. In principle, it is advisable to involve the works council in the internal investigation as early as possible. Practical experience shows that sooner or later the works council's mandatory co-determination rights are affected anyway, so that the employer then has to rely on the works council's consent at the latest. It therefore makes sense to establish a trusting collaboration with the works council at an early stage so that the internal investigations run as smoothly as possible. Concerns could arise because the circle of people privy to the internal investigations will be expanded. However, works council members are generally obliged to maintain secrecy if, in the course of their official duties, they become aware of confidential facts that have been expressly designated by the employer as requiring confidentiality (Section 79 Paragraph 1 Sentence 1 BetrVG). Although this secrecy may of course be disregarded in individual cases, in our opinion overall there are better arguments for early and complete involvement of the works council.
Email evaluation
Another crucial tool in internal investigations can be a screening of the email traffic of suspicious employees.
Often the relevant issue cannot be clarified without an analysis of company email traffic. Sometimes public prosecutors also request a screening of email traffic as part of their cooperation with internal investigators. Ultimately, the ability to prove breaches of duty in subsequent labor court proceedings must always be taken into account. Here too, the importance of email traffic should not be underestimated.
Strict legal requirements apply when evaluating company email traffic. Unfortunately, clear and generally applicable legal guidelines are still missing.
The employer has extensive control rights if the company has prohibited employees from privately using company email access. The employer can then basically access electronic communication within the company. Ultimately, emails cannot be treated any differently than “normal” business letters. The general data protection requirements in the form of Section 32 Paragraph 1 Sentence 1 or Sentence 2 BDSG apply. As a result, the employer must weigh up its own interest in control against the employee's right to informational self-determination. As a rule, however, there will be a control option. Given these aspects, companies are generally advised to prohibit the private use of emails.
However, the reality is different. In most companies, the private use of emails is permitted or at least tolerated within reasonable limits.
In this case the legal situation is more complicated. The question arises as to whether the employer becomes a “service provider of telecommunications services” within the meaning of the Telecommunications Act. If the answer to this question is yes, an analysis of company email traffic would regularly be a violation of telecommunications secrecy. There is then a particular risk of criminal prosecution and bans on the use of evidence in subsequent labor court proceedings.
The data protection literature and also the federal and state data protection supervisory authorities initially presented the prevailing opinion that the employer who allows the private use of emails actually becomes a service provider within the meaning of the Telecommunications Act. As a result, the employee's entire email correspondence would be inaccessible to the employer. Recently, however, the view has increasingly been expressed in the labor law literature and especially in the relevant case law that the Telecommunications Act does not apply to the legal relationship between employer and employee even if the private use of emails is permitted. In this case, too, the protection of the employee is based solely on Section 32 Paragraph 1 Sentence 1 or Sentence 2 BDSG. In our opinion, this legal opinion is also correct. This means that, particularly in the most important practical case of concrete suspicion of a crime, an evaluation of the suspected employee's email account regularly satisfies Section 32 Paragraph 1 Sentence 2 BDSG and is therefore permissible.
In terms of works constitution law, however, it should always be noted that an evaluation of company email traffic is subject to the mandatory right of co-determination in Section 87 Paragraph 1 No. 6 BetrVG (technical monitoring devices). The consent of the responsible works council committee must therefore be obtained before emails are evaluated. As a rule, this should be the respective local works council (not the general or group works council).
Consequences under labor law, in particular extraordinary termination
If suspicions about certain employees come to light in the course of internal investigations, the question of consequences under labor law regularly arises.
In addition to a restriction of authority or a complete suspension, extraordinary dismissals are often issued in practice. These are subject to strict legal requirements, which in turn have an impact on the conduct of internal investigations and therefore require close coordination between the internal investigators and the HR department or labor lawyers.
First of all, the declaration of extraordinary termination does not require proof of the fact. The case law of the Federal Labor Court allows for extraordinary termination even if there is strong suspicion of a serious breach of duty under labor law. However, the most recent case law of the Federal Labor Court places very high demands on this urgent suspicion, so that dismissal on suspicion has practically come very close to dismissal for the offense.
Nevertheless, the method of dismissal on suspicion is still used within the framework of internal investigations. It is important to hear the employee about the accusation before the dismissal on suspicion is announced. The hearing is a prerequisite for the effectiveness of the termination on suspicion. Such a hearing can be integrated into the interviews as part of the internal investigation or can take place separately from the internal investigation. According to the latest case law from the Federal Labor Court, it is not necessary to explicitly inform the employee in advance about the topic of the hearing. Here too, however, transparency should fundamentally be created. In any case, it is not permissible to summon the employee to the hearing under any other pretext. The employee should also be informed that they are free to call in a works council member or a lawyer to support them. In any case, at the formal hearing before a dismissal on suspicion is announced, the labor law literature and case law largely assume that the employee even has a corresponding legal claim.
The facts must then be explained to the employee in sufficient detail so that they can respond appropriately.
For reasons of proof, an appropriate protocol should be made of the hearing. The employee often complains later in the dismissal protection process that he was not properly heard. This objection can best be countered if the hearing has been precisely documented.
Highly problematic in connection with the issuing of extraordinary dismissals (whether as dismissal on suspicion or as dismissal) in internal investigations is compliance with the two-week deadline of Section 626 Paragraph 2 of the German Civil Code (BGB). This begins when the person entitled to terminate the contract has gained comprehensive knowledge of the facts of the termination. Determining this point in time as part of internal investigations is often associated with considerable legal risks and therefore requires the involvement of an employment law specialist in the ongoing internal investigations. In practice, regular meetings involving all relevant internal and external bodies (internal auditing, compliance, HR, white-collar criminal lawyers, labor lawyers) have proven to be effective.
When it comes to investigations by state law enforcement authorities, it is recognized in case law that the employer can wait for the outcome. There is much to suggest that, even in the case of internal investigations, the employer can wait for the final report to be submitted before the two-week period in Section 626 Paragraph 2 of the German Civil Code (BGB) begins to run. This must apply in any case if the management has not previously received sufficient knowledge to make a decision on labor law sanctions based on interim reports. This also assumes that the internal investigations were carried out with the “due speed”. Since the employer is burdened with providing explanations and evidence in order to comply with the two-week deadline, the individual steps of the investigation must be documented in a comprehensible manner. In any case, this is regularly the case when internal investigations are carried out by specialized white-collar criminal law firms or corresponding internal departments (internal auditing or compliance department). However, there is no complete legal certainty regarding the link between the start of the deadline for internal investigations and the submission of the final report, so that an ongoing review of the consolidation of any suspicions and the related consequences for the two-week deadline of Section 626 Paragraph 2 of the German Civil Code (BGB) is advisable. There is a need for action in any case if, during the course of the internal investigation, but before the final report is submitted, certain allegations are fully admitted by the employee. In the case of such a confession, it must be checked particularly carefully whether there is still a comprehensible reason for further investigations and whether the start of the two-week period can be postponed even further. When dismissing on suspicion, it is also important to keep an eye on another deadline determined by case law: after the investigation has been completed, a period of no longer than one week must generally pass before the employee is heard.
Of course, as always, the responsible works council must be consulted before a termination is announced. If a dismissal on suspicion is to be given alone or in addition to a dismissal for the offense, this must be communicated to the works council separately. The suspicion of a crime represents a different reason for termination than the proven crime.
Conclusion
Internal investigations not only present companies with economic criminal law challenges, but also with significant labor law challenges. Constant support of the internal investigations under labor law is required. Possible “traps” such as bans on the use of evidence in subsequent labor court proceedings or the ineffectiveness of labor law measures due to formal deficiencies can be avoided in this way.