Investigation Procedures and the impact of the Whistleblowing Directive

Slovenia

Whistleblower series: Slovenia

As the new legal buzzword “whistleblowing” echoes in political and business circles and the December 2021 deadline for the transposition of the EU's Whistleblowing Directive into national law, the Slovenian lawmakers have revealed little information on what details and novelties the upcoming Whistleblowing legislation will contain.

Internal investigation procedures in absence of whistleblowing legislation

In the absence of legislation specifically dealing with whistleblowers, the employers may resort to establishing internal investigation procedures. Legal compliance for such investigations is crucial. The key pieces of Slovenian regulation that must be taken into account when setting up these kinds of procedures are: the Employment Relationship Act, Health and Safety Work Act, data protection laws, and the Private Security Act.

Until a dedicated whistleblower act is passed in Slovenia, these regulations – with an eye on key judgments in local case law – provide local businesses with a solid direction on how to put systems in place that protect employees from abuse and safeguard firms from the legal risks inherent in violating employee rights. Even when the respective procedures based on the Whistleblowing Directive are adopted into Slovenian law, general rules regarding internal investigations will still apply.

Key considerations for drafting internal investigation procedures

The first step before introducing internal investigations should bethe adoption of an internal by-law. Before finalising these procedures, the employers should make sure they adopt the by-laws in line with statutory requirements, which also require the involvement of worker representative bodies.

Once established, all personnel should be made aware of these systems and should be able to acquaint themselves with these company by-laws at any time. Full transparency protects both the employees and the company.

What priorities should be followed when drafting these procedures?

The procedure should be:

  • transparent;
  • timely and efficient;
  • pursuing a legitimate purpose; and
  • proportionate to the alleged violations.

First and foremost, companies must conduct investigations that do not violate employee privacy at various levels, including data protection (i.e. procedures must respect Slovenian data protection legislation and the GDPR), the physical integrity of an employee's body, personal communications and private property.

By-laws addressing workplace harassment

Sexual abuse in the workplace falls under the auspices of Article 47 of the Employee Relationship Act, which not only outlaws sexual harassment in the workplace, but requires employers to create a working environment that protects employees from all types of harassment or abuse. One of the best practices for doing this is to adopt systems or by-laws that list examples of prohibited behaviour (e.g. sexual overtures, bullying, threats, gossip) and the measures that have been put in place to ensure that the established rules are also carried out in practice (e.g. dissemination of harassment by-laws to all personnel, in-house training on correct conduct, and HR campaigns aimed at creating a healthy work environment).

Employers should also take into account the Slovenian Health and Safety Work Act when drafting these by-laws, which should contain measures to expose and punish anyone guilty of harassment and systems to protect victims. Once the Whistleblowing Directive is implemented, employers will have to adopt specific procedures for whistleblowers. One of the fundamental principles should be that no employee face retribution from the company or colleagues for reporting wrongdoing.

Generally, employees must be fully apprised of what to do in these situations. Firstly, if they experience workplace harassment, they should first try to resolve the wrongdoing themselves. (Some minor abuses may represent one-time behaviour that can be corrected if pointed out.) If this fails, the employee should report the abuse and together with the employer follow the established internal procedures.

By-laws regarding internal investigation procedures may also include creation of an investigation commission, consisting of independent members whose job is to respond to allegations and lead an inquiry. Procedures could also include some guidance that victims can adopt to aid an investigation, such as keeping a diary of any harassment or wrongdoings they encounter.

Investigation techniques: dos and dont's

The primary method for resolving a contentious situation and determining whether the allegations are founded is to conduct interviews with the subject of the investigation, the complainant and witnesses. Generally, an employee must participate in these interviews, which is in line with the basic legal requirement that employees follow the instructions of their employers. It is advisable that detailed minutes of each interview are made, reviewed, approved and signed by the participants.

Other investigatory techniques face important restrictions.

Monitoring and scanning of emails are heavily regulated by Slovenian data protection and privacy of communication laws, and are permitted only in exceptional situations when no other recourse is available to achieve the pursued purpose and the protection of employer rights overrides an employee’s right to privacy (i.e. the proportionality principle).

Companies, however, should be aware that because the Slovenian Constitution and the Criminal Code protect the privacy of email correspondence, violations of this protection could constitute a criminal act in the violation of secrecy of letters. Great care is advised when considering this course of action.

Phone taps are generally prohibited. Searches of an employee's personal property represent a severe intervention in a person’s right to privacy and are likely to constitute a disproportional measure. We therefore advise employers not to carry out this kind of measure. A direct inspection of an employee by the employer is generally forbidden even if the employee gives his consent for an inspection. However, "pat downs" are possible if executed by the security guards in accordance with the Private Security Act.

A job site can be placed under video surveillance, but only if the aim cannot be achieved by other means and is necessary to ensure people safety and protect property, classified information and commercial secrets. Employees must be given prior notice and the representative trade unions have to be consulted prior to its commencement. Video surveillance of certain locations such as change rooms, elevators and bathroom and shower facilities is banned outright.

Once all evidence has been collected, companies should render a decision in writing and inform the subjects involved.

Consequences of internal investigation procedures

A decision can result in disciplinary action or the outright termination of a staff member. In cases of employee termination, companies can protect themselves from subsequent court challenges by ensuring they adhered to all established procedures, that these procedures were well known and transparent among employees, and that the firm took care to record in writing the initial allegation, all interviews and the final report.

These considerations should also be taken into account, even after Slovenia implements the Whistleblowing Directive, which it is obliged to do by 17 December 2021. A close examination of the text of the directive will give employers a solid idea of what any future legislation will look like. Employers are highly advised to include key principles of this directive in their internal by-laws as long as these systems are consistent with the Slovenian legislation described in this article.

For more information on establishing internal investigation procedures in your company and how to best protect yourself in these circumstances, contact your regular CMS advisor or local CMS experts Amela Žrt and Lučka Brunec.