Issue: August 2018

GERMANY - #MeToo in Germany - Internal Investigation in Sexual Assault Cases

By: André Zimmermann

Due to increased awareness and reporting triggered by the international #metoo discussion, besides taking preventive measures, it is crucial for companies with employees in Germany to know what internal actions to take if an employee reports an incident of sexual harassment at the workplace.

Employer’s Obligation to Act

Employers must take action against sexual harassment at the workplace which includes supervisors, employees, and also any business partners or external personnel. To prevent sexual harassment from happening as early as possible, employers should take appropriate precautionary measures. It is highly recommended to provide training for employees and to establish an anti-harassment policy. Furthermore, a complaints department for all employees should be in place.

In case of accusations of sexual harassment, employers must react. In response to a potential situation of sexual harassment, it is necessary to investigate and examine the facts, in particular by interviewing all persons involved (i.e. alleged offender, victim, and witnesses), and carefully recording all evidence. Once the investigation has been closed and the facts have been established and verified, appropriate protective measures and sanctions should be taken.

Investigation Process

There are some key aspects employers should consider when conducting internal investigations in cases of sexual harassment complaints in Germany.

When to start investigations?

Investigations should be started once there are concrete indications of sexual harassment, i.e. in any case, when the alleged victim, other employees or a third party report specific incidents. There is no obligation to make a preventive determination as to whether or not there have been incidents of sexual harassment in the company.

Where to investigate?

Incidents at the workplace

If the alleged incident relates to a behavior at the workplace – either of employees or third parties who happen to be at the workplace – investigations should be commenced without hesitation.

Incidents outside the workplace

The obligation to investigate also includes work-related or company-oriented events such as Christmas celebrations, business trips, seminars or courses. Behavior of employees in their free time, however, generally does not justify investigations or measures taken by the employer, unless it may have a specific impact on the employment relationship, for example by serious disruption of the employee’s work-related relationships. This could be the case if alleged offender and alleged victim are colleagues and both work for the same employer in the same working environment or on the same team.

Who to involve in investigations?

Investigations should be carried out by trained and experienced persons who are neutral and impartial with regard to the matter and the persons involved. If there is no such person available at the company, an external investigator may be involved. The management should be informed about the incident right away with regard to both possible sanctions that may need to be imposed, and possible remedies to be raised by the victim.

Furthermore, it is advisable to discuss the investigation case with an experienced legal counsel right from the start.

How to investigate?

  • After taking notice of the alleged incident, it is advisable to accurately understand the circumstances by interviewing all persons involved, i.e. offender, victim and witnesses.
  • Any interview should be carefully recorded, ideally by verbatim minutes or voice recording with explicit prior consent.
  • The personnel files of all individuals involved should be checked, in particular with regard to any prior incidents or misconduct.
  • If relevant, any emails, other communications, or documents in relation to the reported incident should be carefully reviewed.

What further measures should be taken during investigations?

Further appropriate action that may be taken during and after the investigation may include, depending on the circumstances and always subject to case-by-case assessment, the following:

  • The individuals involved should be instructed not to contact each other during the investigation, and to keep the issue confidential until the outcome is clear.
  • Potentially, either the alleged offender or victim, or both, may be released from their duty to work for the duration of the investigation.
  • Work assignments within or in between teams may be changed to make sure an alleged offender and victim do not work directly with each other until the facts are determined and possible sanctions are implemented.

What sanctions can be imposed on the offender?

Sanctions should not be imposed against an employee accused of sexual harassment until all the facts have been established and verified. Any sanction under German employment law must be appropriate, necessary, and reasonable. Depending on the outcome of the investigation, and based on this principle, potential sanctions include the following:

Formal written warning

This could be an appropriate outcome of a case with a relatively low level of harassment by an offender who during a relatively long tenure never misbehaved before, and usually does not work together with the victim.

Relocation

A relocation would be an appropriate measure if it does not appear bearable for the victim to further work together with the offender, or if in another position or workplace, the offending employee will be under stricter observation.

Dismissal with immediate effect

This will be the sharpest measure and requires that continued employment of the offender is no longer bearable for the employer, e.g. due to the degree and duration of sexual harassment, reaction upon confrontation with own behavior, number of incidents, or victims involved.

Timing requirements for investigations?

It is recommended to start and proceed with investigations as quickly as reasonably possible, in particular if a dismissal with immediate effect is considered. A dismissal with immediate effect is only possible within a two-week period starting once the employer has gained sufficient knowledge of the incident. This two-week period is only suspended as long as investigations are carried out quickly.

Depending on the employer’s sexual harassment policies or internal disciplinary procedures, there might be further aspects to consider or specific requirements established regarding any of the above. This should be clarified before starting investigations, to make sure the company acts in line with its own policies.

Possible Remedies

With regard to possible remedies, German discrimination law provides inter alia for claims for damages, whether material or immaterial damage, and the right to apply for injunctive relief. Furthermore, a victim of sexual harassment may be entitled to stop working while still receiving his or her remuneration, if this is required for his or her protection and the employer fails to take any action or takes obviously inappropriate measures.

André Zimmermann

Orrick, Herrington & Sutcliffe LLP