On October 27, 2026, Myriam de Gaudusson, a partner in our Employment Law Department, was a guest of Arnaud Dumourier on the programme Lex Inside on BSMART 4Change. She addressed a sensitive yet highly practical question: who can conduct an internal investigation when the HR department or management are themselves implicated?
Key points from the interview
An obligation to respond, not an obligation to investigate
No legal rule requires an investigation to be outsourced, or even requires an investigation to be conducted.
The employer is nevertheless required to respond to a report.
Flexible requirements regarding the investigator’s status, but strict impartiality requirements
The case law takes a flexible approach to the investigator’s status, but is strict as to the investigator’s impartiality.
When does an internal investigator remain competent to act?
The investigator must be outside the reporting line of all the individuals concerned.
How should the investigator be selected?
The choice must never be left to the person implicated. It requires a letter of engagement and a declaration confirming the absence of any conflict of interest.
The role of the Social and Economic Committee
The Social and Economic Committee is responsible for overseeing the investigation, but does not replace the employer.
The value of an investigating lawyer
Where the organisation’s governance is directly concerned, appointing an investigating lawyer provides the necessary independence and rigour.
Why assigning an investigation improperly creates a risk for the employer
An investigation that is improperly assigned or conducted does not protect the employer. It may instead be used against it.
Frequently asked questions
Is a company required to conduct an internal investigation?
No. The law does not require an investigation to be conducted, but the employer must respond to a report.
Must the investigation necessarily be entrusted to an external third party?
No, outsourcing is not mandatory. However, it often becomes the only credible option in practice when HR or management are implicated.
Who can conduct an internal investigation?
A person outside the reporting line of all the individuals implicated, appointed pursuant to a letter of engagement and having declared the absence of any conflict of interest.
Can the Social and Economic Committee conduct the investigation instead of the employer?
No. It oversees the proper conduct of the investigation but does not replace the employer.
« Outsourcing is therefore not mandatory, but in practice it often becomes the only credible option. »
Myriam de Gaudusson, Partner
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