New Restrictions on Belgian Employee Investigations
Written By
Partner
Belgium
I am a partner in our Employment team in Brussels, where I advise and represent our clients in a wide range of matters relating to employment and social security law.
Senior Associate
Belgium
I am an associate in our International HR Group in Brussels where I advise our clients with respect to individual and collective labour law issues, as well as social security and HR matters.
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On 8 May 2024, a new law was passed in Belgium reforming the rights and obligations surrounding private investigations. Although initially it may seem that this law only affects private investigators, its broad scope means that it also has significant implications for private sector companies, especially regarding internal investigations conducted by HR departments or Ethics Committees. Employers must be aware of the new obligations, part of which already coming into effect within ten days of the law's publication in the Belgian Official Gazette (still pending – presumably at the end of the year).
Action Points
- Adoption of a Specific Clause: Employers must ensure that a policy, their work regulations, or collective agreements include a clause that governs the terms of private investigations involving employees. Without this clause, any investigation report produced will be null and void, rendering it unusable in legal proceedings. The "Antigone" jurisprudence, based on which judges occasionally allow the use of evidence obtained contrary to certain rules, will not apply in this context. The consequences of unusable investigations could be severe for employers, especially in litigation against former employees, such as cases involving dismissals for serious cause or harassment claims.
- Employee Information Obligations: If an employer decides to use a private investigation report, they must prior inform the concerned employee(s) of specific details after the investigation has been carried out, including:
- The identity of the data controller or representative who conducted the investigation.
- The nature and purpose of the data processing.
- The investigation's start and end dates.
- The employee’s rights regarding access, correction, and deletion of their personal data.
- The identity of the data controller or representative who conducted the investigation.
Conclusion
While the first obligation's entry into force may seem distant, the second obligation will soon kick in, and savvy employers should hence consider starting to review and modify their existing policies and internal investigation processes now to ensure compliance when the time comes.
