Internal Investigations: Practical Insights

Internal investigations are fact-finding processes initiated when there is a suspicion that activities contrary to applicable laws, internal company policies and procedures, or ethical standards have taken place, with the aim of identifying the conduct in question and determining those responsible. At almost every stage of the internal investigation process, such as planning, implementing precautionary measures, collecting evidence, conducting review/analysis, and reporting, issues arise that touch upon different areas of law.

Conducting a careful legal assessment at every stage of the internal investigation process and managing the process in a proper and professional manner is of great importance in terms of minimizing potential legal risks, protecting the company’s corporate reputation, strengthening employees’ trust in the organization, and ensuring sustainability. Investigations managed with a fair, transparent, and interdisciplinary approach not only shed light on existing violations but also reveal areas where the company can improve, enabling the development of preventive measures. Such processes reinforce the company’s ethical culture and, at the same time, serve as an important tool in achieving international compliance standards.

In this article, we will address issues related to different stages of internal investigation processes that are frequently raised or debated.

Is a formal announcement required at the workplace about the commencement of an internal investigation?

Announcing the launch of an internal investigation to the entire company in advance is generally not recommended, as it carries certain risks, most notably concerns around confidentiality. That said, depending on the nature of the matter under review, it may be beneficial to inform certain individuals who need to be aware of the process, provided that the disclosure is limited to what is strictly necessary. For example, before commencing evidence collection or conducting interviews, certain managers or key employees may be informed, so that they understand that some employees will be invited to interviews and document preservation measures will be in effect. Likewise, employees who are to be interviewed can be given an invitation letter at a reasonable time in advance of their scheduled interview.

What measures may need to be taken regarding employees during an investigation?

To conduct an effective and uninterrupted investigation, it may become necessary at certain stages to temporarily remove employees from their duties. This measure may need to be taken urgently in situations where there is a risk that evidence could be altered or destroyed, pressure could be exerted on other employees or on the complainant, or individuals could face physical harm. Such removal from duty may take one of several forms, including: (1) garden leave, (2) placement on unpaid leave, or (3) requiring the employee to use accrued annual leave, as further detailed below.

What is garden leave, and how can it be applied in internal investigations?

Although Turkish law does not formally recognize or define a legal concept equivalent to garden leave, the practice of exempting an employee from active duties is well established in foreign legal systems and referred to by the term “garden leave”. In practice, it also appears in Türkiye as a common method of suspending an employee temporarily from the workplace during an internal investigation. Essentially, garden leave refers to a defined period, either unilaterally notified to the employee or mutually agreed upon, during which the employee remains away from the workplace but continues to receive salary and benefits.

While Turkish legislation does not contain specific regulations on this matter, the principle of freedom of contract, allows the parties to agree on such an arrangement. This may be set out as a clause in the employment contract, established through a separate agreement, or introduced under workplace policies and procedures that the employee is deemed to have accepted. Where garden leave is not expressly regulated under the employment contract or workplace policies and procedures, it would be prudent to obtain the employee’s consent before implementing such a measure as part of an internal investigation.

In any case, if the intended purpose of the garden leave can reasonably be achieved through a less intrusive measure, it is advisable to consider that alternative first. Otherwise, the arrangement may later be regarded in legal proceedings as a constructive dismissal by the employer. Similarly, if an employee is placed on garden leave without consent and instructed not to attend the workplace during this period, the employee may terminate the employment agreement for just cause, and courts may recognize such termination as lawful.

Can requiring the use of accrued annual paid leave be an alternative to garden leave?

As a rule, the timing of when an employee uses their annual paid leave falls within the employer’s managerial authority. However, the employer must exercise its managerial authority in good faith. In other words, annual paid leave, which is an employee’s constitutional right to rest, should be granted in a way that aligns with the needs of the workplace, while also considering the employee’s own preferences as far as possible. Given that abuse of managerial authority is not protected under the law, whether employers may unilaterally require employees to use their accrued annual paid leave must be assessed on a case-by-case basis. Such a practice can only be considered acceptable if applied in line with the principles of good faith.

Can placing an employee on unpaid leave be an alternative?

During an internal investigation, placing an employee on unpaid leave is possible, provided that the employee’s prior written consent is obtained either during the investigation, or immediately before the implementation of the suspension measure, and that the notice to the employee specifies both the reason and the duration of the unpaid leave. If these requirements are not met, the use of unpaid leave may be considered either a constructive termination by the employer or constitute a just cause for termination by the employee. While on unpaid leave, the employee will be deprived of salary and benefits. For this reason, unpaid leave should be considered a “last resort” measure, to be applied only in situations where other paid alternatives, such as garden leave or the use of accrued annual paid leave, are not feasible, cannot reasonably be expected of the employer, or are not considered appropriate under the circumstances.

What measures may be required in relation to third parties during an investigation?

Depending on the investigation, it may be necessary to suspend contracts with third parties and, within the scope of performance of such contracts, halt activities such as the supply or delivery of products. Whether suspension is permissible under the contract terms or is in line with applicable law is an issue that must be assessed promptly, as delays could have serious consequences. In multinational companies or in the context of long-standing commercial relationships, decision-making around contract matters and ensuring that such decisions are communicated across the organization often takes time. Any delay in determining the legal position, however, may result in unexpected negative outcomes. Even if all parties to a contract are Turkish nationals and the contract is performed entirely in Türkiye, international obligations may still need to be considered where one of the parties belongs, for example, to a U.S. or U.K. based corporate group. Accordingly, strict adherence to key international compliance regimes, particularly the U.S. Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act 2010 (UKBA), is especially important, given their extraterritorial reach in anti-bribery and anti-corruption.

How long should an internal investigation take?

An internal investigation should be completed as quickly as possible. Accordingly, there should not be an extended gap between the receipt of information requiring an investigation and the decision to launch the investigation. Once the decision has been made, the planning and subsequent steps must be carried out with urgency and within the timeframe appropriate to the scope of the investigation, avoiding unnecessary delays. That said, the timeline must also be realistic and tailored to the circumstances. The investigation should not be rushed at the expense of skipping important steps. When determining the duration of the process, several factors should be considered: the company’s internal policies and procedures, relevant legal provisions, contractual deadlines with third parties that may be affected by the investigation, the company’s reporting or notification obligations, and procedural timelines in any regulatory investigations or litigation in which the company is involved.

What measures can be taken to ensure confidentiality in an investigation?

Internal investigations are processes that must remain confidential. Accordingly, both at the preparation stage and throughout the later stages of an investigation, it may be necessary to have third parties involved in the process sign confidentiality protocols. These protocols should not only include commitments to maintain confidentiality but also set out principles governing the actions to be taken during the investigation. For example, where a third-party service provider is engaged to analyze evidence, the protocol may set out the principles under which the evidence will be examined, define the scope of the analysis, and specify how long and to what extent the company will be granted access to certain tools and/or systems.

What should be considered when collecting and reviewing the evidence?

In internal investigations, the types of evidence most examined include email correspondence, messages exchanged through platforms such as WhatsApp or Teams, documents obtained during on-site inspections, records stored on company-issued devices such as mobile phones or laptops, employee entry-exit logs, personnel files, financial records, internal documents, and records such as auditor reports. It is essential to plan in advance which pieces of evidence must be collected and to determine the order of priority. The evidence collected should be directly relevant to the subject and scope of the investigation and should be limited to what is necessary to clarify the facts.

Throughout the process of collecting and reviewing evidence, strict compliance must be ensured with data protection rules, confidentiality principles, company policies applicable to employees, as well as constitutional rights and freedoms such as the right to privacy and freedom of communication. Since evidence obtained through unlawful methods will not be considered by judicial or administrative authorities in possible proceedings, safeguarding the legality of the evidence collection process is of critical importance.

Can employers monitor email, computers, or other communication devices provided to employees?

There is no explicit provision under Turkish law granting employers the right to monitor communication tools provided to employees. However, particularly following the enactment of the Personal Data Protection Law in 2016, high court rulings have established that such monitoring cannot be arbitrary or unlimited; it may only be carried out within constitutional safeguards and under certain conditions.

In this context, for an employer to lawfully monitor communication tools provided to employees, a legitimate business interest must exist, such as ensuring the effective performance of work, maintaining oversight of information flows, or protecting the employer from criminal or legal liability arising from employee conduct. Moreover, employees must be informed in advance, within a reasonable period, so that they no longer have an expectation of privacy regarding such communications. Additionally, any intervention by the employer must be directly related and proportionate to the intended purpose, suitable to achieve that purpose, and necessary in the sense that the objective cannot be achieved by less intrusive means.

Can employees’ WhatsApp messages be reviewed?

Court decisions indicate that, where employees have been given clear and explicit prior notice that their WhatsApp communications may be monitored (or where such provisions are expressly included in their employment contracts), and where the employer has legitimate grounds justifying the monitoring together with concrete reasons that make access necessary and proportionate, it may be possible to consider data obtained from WhatsApp messages as lawfully collected.

At the same time, high court rulings emphasize that WhatsApp, even when used on employer-provided mobile phones or computers, is inherently a closed communication environment protected against third-party access. Because of this nature, employees’ WhatsApp communications are regarded as personal data and are protected under the constitutional rights to privacy and freedom of communication. For this reason, accessing such communications without the knowledge and consent of the employee, is considered by courts to be an unlawful interference, and content obtained in this way is treated as illegally obtained evidence. As a result, terminations based on WhatsApp communications obtained without properly observing these principles are often considered invalid or wrongful termination.

Therefore, rather than applying a uniform conclusion about whether accessing WhatsApp communications and using them as evidence is lawful, each case must be assessed individually in light of its own specific circumstances and the criteria outlined above.

Can physical inspections be carried out in employees’ offices?

If a company policy clearly provides that searches may be conducted, and that personal belongings should not be kept in designated areas, and this has been communicated to employees, inspections in such areas may be considered lawful. Otherwise, searches carried out in spaces allocated for employees’ use without consent or another lawful basis will constitute a violation. According to high court rulings, although offices, desks, cabinets, and drawers assigned to employees remain the property of the employer, this alone does not grant the employer an unrestricted right to search them. Employees are deemed to have a reasonable expectation of privacy and confidentiality in those spaces. Therefore, where there is no internal policy or regulation explicitly notifying employees in advance that searches may take place, the employee’s consent would be required before any such inspection.

Can interviews be audio- or video-recorded?

Recording interviews conducted during investigations can be beneficial, as it creates a reliable and easily verifiable record, and allows both the investigator and the interviewee to concentrate better on the discussion rather than taking notes. However, audio and/or video recording of interviews is only permissible if all participants have been informed in advance and have given their consent individually. If the recording excludes the voice or image of a participant who withholds consent, recording may be proceeded with the consent of the other participants. Otherwise, recording without consent would constitute a breach of law, particularly under the Personal Data Protection Law and the Turkish Penal Code, and any data obtained in this way would not qualify as lawful evidence.

How should one approach an employee who refuses to attend an interview or requests to be accompanied by a lawyer?

A request made by an interviewee to have the interview conducted in the presence of a lawyer should not be rejected outright. However, it should be made clear that the lawyer’s role will be limited to that of an observer. If the employee refuses to participate in the interview, they should be reminded of their obligations under employment law and should be asked to explain the reasons for their refusal to participate in the interview and the investigation process.

Who should conduct the interview, and how many people should be involved?

It is generally recommended that interviews be conducted by individuals who are not employees of the company, who can demonstrate impartiality and independence, and who have prior interview experience. Unless the nature of the interview or the subject matter of the investigation requires a different approach, the ideal composition of the interview team is to consist of two people. In such a team, one interviewer should lead the conversation, while the other should take notes and, where necessary, ask follow-up questions to support the process. It is also advisable that at least one member of the interview team has a legal background.

What disciplinary sanctions can be imposed on employees following an investigation?

The most common disciplinary sanctions regulated under the law and addressed in court rulings are written warnings, wage deductions, and termination of employment contracts. In addition to these, company’s internal policies and procedures may provide for other types of disciplinary measures. For this reason, it is essential to review the relevant internal policies as well as company practices before imposing any disciplinary sanction. In fact, such policies may impose certain obligations on the employer that are not legally mandatory; for example, convening a disciplinary board or holding a disciplinary hearing before sanctions can be applied. Failure to comply with these requirements may render a termination invalid or wrongful. Therefore, before implementing any disciplinary measure, internal policies and practices should be carefully reviewed, and it must be ensured that disciplinary processes are carried out in full compliance with them.

When does the six-business-day period for termination with just cause begin?

If just cause exists, the employer must exercise the termination right within six business days upon becoming aware of the violation, and in any event within one year of the conduct giving rise to the violation. These are statutory limitation periods under Turkish employment law, and if they are not observed, the termination cannot be based on just cause, even if a valid ground for just cause exists. In cases where an internal investigation is ongoing, the six-day period begins only after the investigation has been concluded and from the date on which the competent decision-making person or body (e.g., the general manager, the board of directors, or the company’s disciplinary committee) becomes aware of the outcome of the investigation.

Is it mandatory to obtain the employee’s defense? Do interviews count as a defense?

In cases of termination based on a valid reason, or in cases of termination with just cause other than those involving breaches of morality and good faith, requesting the employee’s defense is a legal requirement for the validity of the termination. Furthermore, where company policies and procedures stipulate that a written defense must be obtained from the employee before termination of employment, regardless of the grounds for termination, failure to comply with this requirement may render the termination invalid. Interview minutes, however, are documents prepared to record interviews conducted during an investigation. Even if signed by the interviewee, such records should not, in principle, be considered as fulfilling the employer’s obligation to request a defense. A separate written defense should be requested from the employee before the termination decision is finalized.

CONCLUSION

In light of the above considerations, the key points can be summarized as follows: for an internal investigation to be conducted successfully and to protect the company strategically against legal risks, it is crucial not to issue a general announcement to the entire organization at the outset, but rather to inform only those individuals who need to be involved in the process. Where there are risks such as evidence being tampered with or witnesses being intimidated, employees may temporarily be removed from duty through measures such as garden leave, use of accrued annual leave, or unpaid leave, and such measures are implemented with employee consent and in line with the principles of good faith.

Depending on the scope of the investigation, suspending contracts with third parties or ensuring compliance with relevant legal obligations may also require particular care. Investigations should be completed thoroughly yet within a reasonable timeframe, avoiding unnecessary delays, and confidentiality must be preserved at every stage. During evidence collection, monitoring of communication tools, and interviews, the utmost care must be given to safeguard data protection rules and employees’ fundamental rights. Before taking any disciplinary action, consideration must be given to whether the employee’s written defense is required, and full compliance must be ensured with internal policies and procedures to avoid potential legal disputes.

All these elements demonstrate that internal investigations are not merely technical processes; but they directly affect a company’s ethical culture, credibility, and long-term sustainability, and therefore must be approached with diligence and care.