Many Peruvian dismissals are lost not because the misconduct did not happen, but because the employer cannot prove it the way a labor judge needs to see it. Under article 37 of the Productivity and Competitiveness Law (the consolidated text of Legislative Decree 728, or LPCL), the employer bears the burden of proving the cause of dismissal. Article 26 adds that serious misconduct is established by objective verification in the employment procedure, regardless of any criminal case. Together, they turn documentation into the core of any disciplinary decision.
For international groups, the challenge is structural. Investigations are frequently led by compliance or security teams outside Peru, produce reports in English, and follow timelines designed for global governance rather than Peruvian procedure. This article explains how to build a file that works in Peru. It complements our overview of dismissal for serious misconduct and the wider guide to termination of employment in Peru.
What a labor judge looks for
A Peruvian judge reviewing a dismissal typically asks four questions. What exactly did the employee do? How does the employer know? Does that conduct fit a statutory category of serious misconduct? Did the employer act promptly and give the employee a fair opportunity to respond? The file should answer each question on its own, without relying on the testimony of investigators who may have left the company or live abroad.
Key point
Document facts, not impressions. “The employee acted dishonestly” is a conclusion. “On 3 and 10 March the employee approved invoices from a supplier owned by his brother, for the amounts shown in attachments 4 and 5, without the conflict disclosure required by rule 12 of the internal work rules” is a fact that can be proven or disproven.
Evidence by type of misconduct
Different categories of serious misconduct under article 25 of the LPCL call for different evidence. The table below summarizes the core items.
| Type of misconduct | Core evidence | Practical tip |
|---|---|---|
| Unjustified absences or abandonment | Attendance records, communications sent to the employee, absence of medical certificates | Peru requires an attendance register; make sure it is complete and signed off |
| Appropriation or fraud | Accounting entries, invoices, inventory counts, bank records, footage | Preserve originals and metadata, not just screenshots |
| Disclosure of confidential information | System logs, email metadata, confidentiality undertakings, classification of the information | Show the information was actually confidential |
| Violence or abuse | Witness statements, incident reports, medical reports, footage | Take statements promptly and in the witness’s own words |
| Breach of safety rules | Training records, signed rule acknowledgments, incident report, supervisor statements | Link the breach to the approved safety rules |
| Intoxication at work | Test results under an established protocol, supervisor observations, role risk assessment | Follow a pre-existing testing protocol |
| Sexual harassment | Complaint, committee report, evidence gathered under the statutory procedure | Follow the special procedure and deadlines |
Running the investigation
Opening the file
Record when and how the employer first learned of the facts: a hotline report, an audit finding, a supervisor’s email. That date is the starting point for the immediacy analysis. Appoint an investigator with no conflict of interest and define the scope in writing.
Preserving evidence
Secure documents and data before alerting the employee. Export system logs with their metadata, keep original files rather than printouts, and note who collected each item, when and how. Where footage is involved, preserve the full recording, not only the relevant clip. A simple chain-of-custody log is often enough to defeat a later claim that evidence was altered.
Witnesses
Interview witnesses separately, as soon as practicable, and ask them to sign a written statement in Spanish reflecting their own words. Avoid leading questions and do not share other witnesses’ accounts. Where witnesses fear retaliation, document the protective steps taken.
The employee’s account
An interview with the employee during the investigation can clarify facts, but it is not a substitute for the statutory notice of charges and the response period of at least six calendar days under article 31 of the LPCL. How to draft that notice is covered in the notice of charges before a dismissal in Peru.
Watch out
Personal data collected during an investigation is subject to Law 29733 and its regulations (Supreme Decree 016-2024-JUS, in force since March 2025). Some categories, such as health data and trade union membership, are sensitive. Collect only what the investigation needs, restrict access and keep a record of the purpose.
Sexual harassment complaints
When the misconduct is sexual harassment, the Supreme Decree 014-2019-MIMP procedure applies alongside the disciplinary route: protective measures within three business days of the complaint, notification to the Ministry of Labor and Employment Promotion (MTPE) within six business days, a report from the intervention committee (or delegate, in smaller workplaces) within fifteen calendar days, and a decision within ten calendar days of the report. The committee’s report becomes a central piece of the dismissal file.
Illustrative scenario
Illustrative scenario
Illustrative scenario: a pharmaceutical distributor in Lima, owned by a Swiss group, receives an anonymous hotline report that a key account manager is offering discounts in exchange for personal payments. The group’s compliance office in Zurich runs a forensic review, interviews two customers by video and concludes, in a 30-page English report, that the allegations are “substantiated”. The report reaches Lima seven weeks later with a recommendation to terminate.
The report is persuasive but, as it stands, hard to use in Peru. It summarizes customer interviews rather than attaching signed statements. It refers to “analysis of transactional data” without preserving the underlying records. It is in English. And seven weeks have passed since the investigation concluded, most of it waiting for committee approval. A usable file would translate the key findings, attach the specific transactions and communications, include signed witness statements where customers are willing, record why each step took the time it did, and move quickly to a Spanish-language notice of charges.
Dividing roles between the group and the Peruvian entity
Global compliance teams bring forensic expertise and independence that local HR often lacks. The Peruvian employer, however, is the party that must prove the cause, send the letters and defend the case. A workable division of roles usually looks like this:
- Global or regional team: receives the report, runs the forensic work, secures data held on group systems and produces findings.
- Local HR and counsel in Peru: record the date of knowledge, take witness statements from local staff in Spanish, check attendance and payroll records, and verify protected status.
- Joint step: convert the findings into a Spanish-language factual report and agree on a timetable that respects immediacy.
- Peruvian employer: issues the notice of charges, evaluates the response and decides, through a representative with authority under the local entity’s powers.
Agreeing this split in the group’s investigation policy, before a case arises, avoids the most common delays. It also ensures that the evidence ends up where it will be needed: in a file the Peruvian entity controls and can produce in court.
Consequences of a weak file
If the employer cannot prove the facts, the dismissal is treated as unfair and the employee is entitled to statutory severance of one and a half monthly salaries per full year of service, capped at twelve. If the facts turn out to be false or the evidence appears manufactured, the case may be characterized as a fraudulent dismissal, for which constitutional case law allows reinstatement. A weak file also has an internal cost: it signals to the workforce that misconduct reported through the hotline may go unaddressed.
The investigation report
Close the investigation with a short factual report in Spanish that includes:
- How and when the facts became known.
- The scope and steps of the investigation, with dates.
- Each finding, with the supporting evidence referenced.
- The statutory category each finding may fit.
- Any mitigating facts or contrary evidence found.
- A recommendation, which may be a lighter sanction rather than dismissal.
The last point matters. Not every proven breach warrants dismissal; proportionality is examined in disciplinary measures in Peru.
Common documentation failures
- Relying on conclusions from a global report without the underlying records.
- Screenshots without metadata or context.
- Witness statements drafted by HR and signed without review.
- No record of when the employer learned of the facts.
- Accessing personal devices or private accounts without a legal basis.
- Letting weeks pass between the end of the investigation and the notice of charges.
These and other failures are discussed from a litigation angle in mistakes that undermine a dismissal in Peru.
Key takeaways
A Peruvian disciplinary file must speak for itself: specific facts, preserved evidence, signed statements and a clear timeline, in Spanish, linked to statutory grounds. Groups that design their global investigation protocols with those requirements in mind can act decisively in Peru; those that do not often find that a well-founded case cannot be proven. Our disciplinary procedures team supports local HR and global compliance teams in structuring investigations and translating findings into defensible charges.