# The interview in an internal investigation Source: https://www.ouaknine-avocats.com/en/publications/audition-enquete-interne No statute governs the interview in an internal investigation. It is neither a judicial interview nor the preliminary meeting provided for by articles L. 1232-2 et seq. of the French Labour Code. Its framework is drawn from elsewhere, from the duty of good faith, from respect for private life and from the General Data Protection Regulation. The result is a freedom of method whose exercise will be assessed after the event, when the investigation is challenged. #### What is said at the start of the interview No provision requires any opening statement. The information investigators give in practice may cover the subject of the verifications and the capacity in which the person is being interviewed. It may also make clear that the interview has no disciplinary character and explain what will become of the record. None of this conditions the regularity of the investigation. Such indications do, however, narrow the later debate about method, which is the ground to which a challenge shifts once the facts are firmly established. #### Assistance There is no statutory right to be accompanied at an internal investigation interview, unlike the preliminary meeting, for which article L. 1232-4 of the French Labour Code provides. A collective agreement, internal rules or an investigation charter may nevertheless provide for it, in which case that source prevails. Refusing a request for assistance is not without effect. It shifts the later debate towards the method followed, even though no statute required it. #### The order of interviews and the person under investigation Interviewing witnesses before the person under investigation is the more common practice, for a reason connected with the information available to the investigator at the time the questions are put. The interview of the person under investigation raises a distinct question on which the case law is settled. An internal investigation is not subject to the adversarial principle, and the Social Chamber has held that it does not constitute an unfair mode of proof even where the employee concerned was neither informed of it nor interviewed. An investigation conducted without obtaining their account is therefore not irregular. It does, however, leave open a discussion about the probative value of the report, which the lower courts assess in the light of the other evidence adduced, so that the question is one of evidential strategy rather than validity. The question of silence arises in the same terms. The Conseil constitutionnel, by a decision of 19 September 2025, and then the Social Chamber, by a judgment of 13 May 2026, held that an employer is not required to notify an employee of a right to remain silent at the preliminary meeting, the guarantees flowing from the presumption of innocence applying only to sanctions having the character of a punishment imposed by a public authority. No information duty of that kind therefore rests on the investigator. It does not follow that silence on the part of the person interviewed may be presented as an admission, nor that a refusal to answer is in itself culpable. Both fall to be assessed in the light of the circumstances and of the duty of good faith owed by each party to the employment contract. #### The record of the interview The record is not an official transcript. It is not conclusive evidence, it documents. Its weight depends on what the court is prepared to take from it, which explains the attention paid to its neutrality, to its review by the person interviewed and to the handling of any corrections they request. A refusal to sign is recorded, it is not interpreted. #### The role of the lawyer The interview plan is built from the documents, which means determining what each interview must establish, in what order and what it is not appropriate to disclose at that stage. A lawyer instructed to conduct the interviews conducts all of them, with no distinction based on the position of the person interviewed. Their preparatory notes fall within professional secrecy (secret professionnel), within the limits set out in Episode 2, which is true of no document produced by the company alone. Certain safeguards may be offered to the person interviewed, whether the investigation is conducted internally or entrusted to a lawyer. Informing them that they are not obliged to answer, allowing them to be accompanied by counsel, giving them the record of their statements: none of these precautions is required by any statute. Their weight nevertheless differs according to who grants them, since a party granting them while remaining judge in its own cause risks having them treated as a formality, whereas an external professional bound by rules of conduct derives from them a credibility that a challenge reaches less easily. Their effect is measured at the end. Since the probative value of the report is assessed by the lower courts in their unfettered discretion, an investigation conducted in those conditions presents a challenger with a course of events that offers nothing to criticise. It likewise carries greater weight with a prosecutor or a regulator before whom its findings are placed. The firm affords these safeguards in every investigation it conducts. One limit deserves a final mention, one that companies sometimes lose sight of. An internal investigation interview is not an interrogation. The investigator has no power of compulsion and the person interviewed remains free to bring the interview to an end. As for a document resembling a pre-drafted admission, it exposes the exercise to the objection that it was obtained under pressure, without relieving the court of the task of assessing its value. Previous episode: Precautionary suspension and interim measures. Next episode: Gathering evidence in an internal investigation. See also our internal investigations practice. This material sets out the general legal framework and does not constitute legal advice. ## Conducting an Internal Investigation - [Conducting an Internal Investigation - Episode 1: Opening an investigation, triggers and scope](https://www.ouaknine-avocats.com/en/publications/ouvrir-une-enquete-interne-declencheurs-perimetre) - [Conducting an Internal Investigation - Episode 2: Who should conduct the internal investigation](https://www.ouaknine-avocats.com/en/publications/qui-doit-mener-l-enquete-interne) - [Conducting an Internal Investigation - Episode 3: Precautionary suspension and interim measures](https://www.ouaknine-avocats.com/en/publications/mesures-conservatoires-enquete-interne) - [Conducting an Internal Investigation - Episode 4: The interview in an internal investigation](https://www.ouaknine-avocats.com/en/publications/audition-enquete-interne) ## Pages - [The Firm](https://www.ouaknine-avocats.com/en): home page: the practice in one sentence and its three main fields - [The firm and Alice Ouaknine](https://www.ouaknine-avocats.com/en/about): the firm, Alice Ouaknine's background, working languages - [Expertise](https://www.ouaknine-avocats.com/en/expertise): every field of practice - [Publications](https://www.ouaknine-avocats.com/en/publications): the firm’s own writing, including the police-custody survival guide, and the press articles that quote it - [Contact](https://www.ouaknine-avocats.com/en/contact): address, phone, mobile and email - [ISKA network](https://www.ouaknine-avocats.com/en/iska): the network of independent attorneys the firm belongs to - [Legal Terms](https://www.ouaknine-avocats.com/en/legal): legal notice and cookie policy --- Ouaknine Law Firm, 17 rue de Douai, 75009 Paris, France. +33 (0)1 84 16 20 35. cabinet@ouaknine-avocats.com https://www.ouaknine-avocats.com/en/llms.txt · https://www.ouaknine-avocats.com/sitemap.xml