Internal investigations are not a new phenomenon in Ukraine. However, even if an investigation was successful, still there are lots of issues relating to potential imposition of disciplinary penalties on employees who are in fault.
Vasil Kisil & Partners and Ius Laboris, the biggest global alliance of employment law firms, held on 14 June an event dedicated to internal investigations. Apart from Oksana Voynarovska, Partner and Head of Labour and Employment Practice at Vasil Kisil & Partners, James Davies, Co-Head of Labour and Incentive Department, Lewis Silkin (UK), and Gisella Alvarado, associate, Sagardoy Abogados (Spain), acted as speakers at the meeting.
Though many companies in Ukraine have been applying the practice of internal investigations, it became evident during the meeting that Western Europe had more extensive experience in this field.
It should be noted in the first place that companies used to launch internal investigations to find out whether their employees were involved in violation of laws or company's internal policies. Internal investigation findings serve as the ground to bring guilty employees to liability.
However, it is still a problem in Ukraine to bring an employee to disciplinary liability based on results of the internal investigation. The reason is that labour laws are imperfect and outdated and companies lack experience to have proper procedure to conduct internal investigations, while internal policies are not available or are insufficient to govern this issue.
Oksana Voynarovska notes that it is essential to involve lawyers as external counsels into internal investigations since this would help to comply with requirements to such investigations not alone, but to document properly the investigation findings, which would subsequently enable to bring guilty employees to liability.
In support of this argument, James Davies said that, whenever an attorney was involved in an internal investigation in the United Kingdom, this would enable to treat the internal investigation process and findings as the attorney-client privilege. Thus, there were additional remedies preventing this information from disclosing. Such experience may be successfully applied in Ukraine as well.
Moreover, it is very interesting to know that, both in the United Kingdom and in Spain, the commencement of an internal investigation is an unconditional ground to suspend the employees suspected to commit the violation; however, they retain their salaries during such suspension. As Gisella Alvarado said, this enables to prevent such employees from impeding or affecting the process of internal investigation. It's quite difficult to imagine such a situation in Ukraine, where the laws expressly define grounds to suspend employees.
Eventually, special attention was focused during the meeting on methods used to carry out internal investigations. Our British and Spanish colleagues note that, as a general rule, if video surveillance cameras are installed in company's premises, this must be brought to notice of the employees. Moreover, the employees must be informed of the purpose of such video surveillance. However, hidden camera records may sometimes be treated as proper evidence of the employee's fault. If so, hidden cameras must be used exclusively as the last resort and their recordings must solely confirm the conclusions that rest on previously collected evidence.
In addition, the employer's access to employees' personal computers and mobile phones has been discussed as well. Though such access may be granted in Ukraine if the employer provided such equipment to the employee to do his or her job, it's not all that simple in the West. The lawyers note that in UK or Spain the employer may request that access is given to it to the employee's personal computer or mobile phone if they use them in their work. Anyway, documents created by employees upon discharging their employment duties are the company's property, so that the employer must have access to them. As regards potential review of personal files, they must be clearly marked as such. Otherwise, all files kept in the employee's office computer will be examined during an internal investigation.
Thus, be it as it may, notwithstanding that a company may have the most creative security service, there may be no assurance that the internal investigation will be successful. Therefore, Ukrainian companies should take a closer look at foreign experience.