During its plenary session on May 8 this year, the Chamber of Representatives in Belgium adopted a legislative proposal regulating private investigations. The purpose of this new law is to review the existing legal framework governing the practice of private investigation. This article outlines some of the changes introduced by the law that are relevant to employers that use private investigation services.
Adoption of a specific clause for employers
The first new provision is the requirement for employers to set out their authorization to carry out private investigations and the terms and conditions of private investigations in writing if the subject of the private investigation is employed by the instructing party. This means that unless an appropriate provision is included in a written policy, an employer will not be able to use private investigation services concerning one of its employees.
While the law does not specify the legal nature of the policy that must contain the clause in question, the travaux préparatoires (preparatory works) refer to labor regulations, a company's collective labor agreement or a decision by the works council.
Companies have two years from the date the law comes into force to comply with this new provision. If the company has not adopted a valid clause of this kind, the law stipulates that the investigation report is null and void and cannot therefore be used in legal proceedings. The Antigone jurisprudence, which in certain cases allows the admission of evidence gathered in violation of certain rules, could therefore not be applied.
Obligation to pass on certain information to the person concerned in the private investigation
If, at the end of the investigation, the employer that requested the private investigation decides to use the report, it must communicate certain information to the person concerned:
- identity and contact details of the data controller or their representative;
- nature and purpose of the processing of their personal data;
- start and end dates of the private investigation;
- the existence of the right to access, add to, correct or delete inaccurate personal data concerning them free of charge and the modalities under which this right can be exercised with the assignee.
Legal validity of the private investigation report
Finally, the law now explicitly states that in claims based on the results of a private investigation, it is up to the judge to determine whether the private investigation was conducted in accordance with the law. Apart from violations of the law expressly prescribed under penalty of nullity, the judge has full discretion as to the probative value that can be attributed to the findings of a private investigation.
Employers should therefore pay close attention to these factors if they wish to conduct an investigation of an employee, for example, in the context of a possible serious misconduct case. It is particularly advisable to include rules relating to private investigation in a policy as a precautionary measure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.