HR Internal Investigations in Thailand: An Introduction

In recent years, movements such as #MeToo and Black Lives Matter in the USA and other major jurisdictions, as well as the rise of environmental, social and governance (ESG) concerns, have subjected employers to heightened security and pressure as employees are increasingly becoming aware of their rights to bring forward matters that they view to be, among other things, wrongful, unfair or discriminatory.

Thailand is no exception. Increased media attention on such issues has led to an increase in high-profile harassment cases coming to the public's attention, and victims are now more inclined to file complaints or express their frustrations on social media platforms.

Therefore, it has become crucial for employers to handle these issues appropriately, as mishandling can lead to damaging impacts on business and operations, ranging from litigation risks to reputational damage and the potential for blacklisting by customers or investors. Employers are thus expected to provide assistance in conducting fact-finding and investigations to resolve matters. Regulated industries such as finance, healthcare and legal face additional hurdles, but public scrutiny of businesses and how they treat their people across the board has never been higher. Conducting a fair and thorough workplace investigation is therefore critical to the optimum operation, governance and legal exposure of every business.

Recently, many HR internal investigations have been  related specifically to sexual harassment. Reports from alleged victims are usually made anonymously or names are withheld to protect the victims themselves and the persons involved – eg, key witnesses. Despite this, these kinds of allegations are taken very seriously by companies, and internal investigations are usually initiated and concluded promptly due to the potential legal and reputation risks to companies if the matter should drag on, or if the public and the media become involved.

Legal landscape in Thailand

In Thailand, there are no specific laws and regulations governing workplace investigations. However, companies may provide the procedures for undertaking workplace investigations in their relevant work regulations or other policies and/or procedures.

Notwithstanding the above, if an employer has ten or more employees, they are required under the Labour Protection Act B.E. 2541 (1998) (LPA) to prepare work regulations that must include details, among other things, on grievance and its scope, including procedures for the submission of grievances, investigations and considerations of grievances, procedures for the settlement of grievance and the protection of the claimants and persons involved. However, it is still up to each employer to prescribe these details as it deems appropriate.

There have been cases where employers simply prescribe rough procedures for how to conduct an investigation following the submission of a grievance, such as:

• who to submit the grievance to;
• who is responsible for considering the grievance; and
• the timeline used to consider each grievance.

Some employers may go further and prescribe detailed procedures for employees to follow when it comes to grievance submission and investigation, such as:

• the specific form for employees to fill in;
• the specific hotline number/website to submit grievances;
• the engagement of hotline service providers to be responsible for monitoring any submission;
• the engagement of external counsel/lawyers to assist with the fact-finding and determination of the findings;
• the specific ad hoc members of the committee to be set up to consider each grievance;
• the timeline for each specific procedure;
• the conclusion of the outcome of the investigation and the actions to be taken; and
• the appeal process.

Specific issues in investigations

Starting an investigation

There are no specific legal requirements under Thai law as to when and how a workplace investigation should commence. However, the procedures for commencing workplace investigations may be provided in a company's relevant work regulations or other policies and/or procedures, which the employers will then have to follow.

Generally, workplace investigations may commence when employees (or other third parties) raise their concerns to the company via the company's available reporting channels (which may include hotlines).

Once the investigation is initiated, the designation of someone to be responsible for conducting the investigation will depend on specific qualifications or criteria as prescribed in the work regulations or other policies and/or procedures, since there are no specific legal requirements under Thai law as to the persons who should conduct a workplace investigation (including in terms of the minimum qualifications that such persons should possess or the criteria for selecting such persons).

It is also important to consider that key witnesses may be intimidated or threatened, and evidence may be compromised, and hence the employee who has been accused may be suspended during a workplace investigation. There are two options for this, as follows.

• If the employer wishes to suspend the employee during the investigation and pay only 50% of their wage, its work regulations or employment agreement must provide for this basis, and the employer must comply with the following conditions:
1. the employer must issue a written suspension order for investigation, specifying the offence and setting the period for suspension of not more than seven days, and notify the employee before the suspension;
2. during the suspension period, the employer will pay money to the employee at the rate of 50% of the wage on a working day that the employee receives prior to being suspended; and
3. if it is found when the inquiry is completed that the employee is not at fault, the employer will pay the employee the remaining 50% wage plus a 15% per annum interest.
• If the employer will be paying 100% wage to the employee, it can order the employee to take paid leave for as long as it is necessary to conduct the investigation.

Evidence gathering

There are no specific Thai laws that govern the gathering of evidence as part of a workplace investigation. However, the company's right to search files or other documents to gather evidence may also depend on whether the files or documents relate to the employees' work as part of their employment with the company and/or where the files or documents are stored (eg, whether such files are stored on a company-issued laptop or its server).

If such evidence to be gathered contains personal data of the employees, employers will have to ensure that they comply with the main legislation governing personal data protection in Thailand – ie, the Personal Data Protection Act, BE 2562 (2019) (PDPA), which prescribes the requirements in relation to the collection, use, disclosure and/or other processing of evidence containing the personal data of employees (or other third-party individuals).

Confidentiality and privilege

Thai laws do not provide any specific confidentiality obligations with respect to a workplace investigation. Investigations may therefore again be subject to the company's work regulations or other policies and/or procedures. It is common for an investigation to be kept confidential by the investigating team as well as the parties involved, including the employee and the witnesses. This is where the parties involved in the investigation shall be provided with clear instructions to keep information in relation to the investigation confidential.

It is also possible for the employer and the employees to sign separate confidentiality agreements (eg, NDAs).

Failure to comply with the instructions by the employer may also result in the breaching parties being sanctioned by the employer via disciplinary actions, or even a lawsuit.

Where the investigation is conducted by qualified professionals (eg, licensed lawyers), certain privileges may also apply to the work products and communications of the professionals that are created during the investigation.

Rights to representation

Thai laws do not give employees under investigation any specific rights to be accompanied or have legal representation during a workplace investigation (unless provided otherwise in the company's work regulations or other policies and/or procedures). Generally, works councils, trade unions and lawyers or their representatives do not have the legal right to be informed or involved in the investigation.

However, other support may be provided to the employee on a case-by-case basis. For example, the employer may provide a translator to assist the employees if the team conducting the investigation and the employees have different first languages.

Issues during the investigation

Employees are required to comply with the instructions of the employer to participate in the investigation sessions arranged by the employer as it is considered as the lawful order of the employer. Nonetheless, some employees may attempt to obstruct the process by the following methods.

• Raising a grievance during the investigation: any legitimate grievances that are raised during the investigation should be handled in accordance with the company's work regulations or other policies and/or procedures, even if such grievances are raised by the employees under investigation.
• Going off sick during the investigation: subject to the company's work regulations or other policies and/or procedures, this matter may be considered on a case-by-case basis by the employer. For example, if there is any evidence indicating that the employee under investigation is trying to intentionally avoid co-operating with the investigation by claiming to be sick, the employer may consider taking appropriate disciplinary actions against the employee.
• Initiating a parallel criminal and/or regulatory investigation: this issue may be subject to the specific facts under investigation, including the type of criminal and/or regulatory investigation. Generally, it should be noted that regulators may also have the authority to compel the employer to share evidence or take other steps (though, again, this depends on the specific laws providing such authority), which may result in a delay to the main investigation.

Employer's exposure for errors occurring during the investigation

If the error is related to procedural requirements on the employer (if any), the employee who is disciplined due to the result of such investigation could try to claim that the employer’s investigation is not valid and thus the disciplinary action imposed on them as a result of such investigation should also not be valid. Moreover, if the disciplinary action is the termination of employment, the employee could also raise this issue to claim that the termination is unfair procedurally against them, to try to claim reinstatement or unfair termination compensation (this is more likely).

If the error is related to the factual issues, then the employee may claim that they have not committed the alleged wrongdoing so the disciplinary action imposed against them is not legally valid in the first place. Similarly, if their employment is terminated, they can claim that the termination is unfair and ask the court to order reinstatement or unfair termination compensation. If their employment is terminated without pay, they could also claim that their termination does not fall under any statutory grounds for termination without pay and claim any outstanding severance pay and termination payments plus 15% per annum interest.

Outcome of investigation

Thai laws do not provide any specific obligations for the employer to inform the employee about the outcome of a workplace investigation. This issue may therefore be subject to the company's work regulations or other policies and/or procedures.

The extent of what the employer decides to inform the employee about the investigation may also be dependent on the nature of the matter under investigation (eg, the employer may choose not to disclose sensitive matters that are unconnected to the employee).

If the investigation concludes that a wrongdoing has been committed, the employer may choose to take appropriate disciplinary actions against the employee, or even report the matter to the police if a crime is found to have been committed.

There is no legally prescribed period for keeping the outcome of the investigation on an employee’s record. However, the employer should keep a record of the investigation outcome only to the extent that doing so is necessary – eg, as evidence to defend an unfair termination claim if the employee is subsequently terminated as a result of the investigation, or a criminal or civil claim.