Private investigations can be a valuable tool for employers, enabling them to assess employee conduct and gather evidence in cases such as internal fraud or dismissals for serious cause.
The legal framework governing private investigation activities has recently been updated by the Private Investigation Regulation (Act of 18 May 2024 regulating private investigation, the ‘Act’). Whereas the original law only focused on “detective agencies” or private investigators, the scope of the new Act is larger and encompasses internal services for private investigations within companies. This new legal framework therefore introduces new obligations that employers must consider when conducting private investigations.
Below, we highlight key aspects of this updated legal framework for employers.
1. Background and extended scope
The new legal framework replaces the Act of 19 July 1991 on the profession of private detectives. It has a broad scope and applies to private investigation activities carried out by external investigators as well as company in-house investigation teams (e.g, HR staff). Certain activities are explicitly excluded from the scope of the law, in particular investigations conducted under a legal obligation, such as investigations conducted in the framework of whistleblowing reports (see infra).
Employers may have various reasons for wanting to use a private investigator or to launch an internal investigation themselves. Common examples include:
- Internal investigations into employee fraud;
- Investigations into unfair competition by a (former) employee;
- Detecting unauthorised solicitation of staff by a competitor;
- Investigating sick leave fraud;
- Gathering additional evidence in the context of dismissal for serious cause.
2. Obligation to implement a private investigation policy
Under the new legal framework, investigations must be explicitly permitted and regulated in an internal policy. This requires a policy on private investigation in the workplace to be implemented, detailing the authorised use of private investigations and the procedures to follow.
The new legal framework does not specify the exact form in which this must be provided. The preparatory works merely indicate that employees must be informed in advance that private investigation activities may take place in the workplace and that, for example, this may be provided for in a collective labour agreement, work regulations or a works council decision. In the absence of any specification in the new legal framework itself, the modalities for conducting private investigations should be incorporated into a dedicated policy.
Employers have until 16 December 2026 to comply with this obligation. After that date, non-compliant employers will no longer be able to legally rely on private investigations.
3. Substantial obligations
The Act introduces several substantial obligations that are relevant for employers when conducting private investigations, including:
- Transparency obligations toward employees;
- Obligations regarding ways of obtaining and securing information;
- GDPR and privacy obligations;
- Obligation to draw-up a written engagement letter and an objective investigation report containing mandatory information supported by the necessary documents;
- Obligation to submit a written final report to the employer within one month of concluding the investigation;
4. Internal investigations by HR staff
As previously mentioned, the new legal framework applies not only when employers engage external investigators, but also when they conduct investigations internally. This includes, for instance, occasional internal investigations carried out by HR staff, such as reviewing camera footage, analysing access control data, examining electronic locks or badge readers, or interviewing colleagues.
Unlike external investigators, HR staff are not required to hold a license or identification card. However, they must comply with all other conditions governing the conduct of private investigations.
5. Whistleblowing
Are excluded from the scope of the new legal framework activities conducted by an employer in the performance of legal obligations, such as investigations conducted in the framework of whistleblowing reports, in accordance with Directive 2019/1937 and its implementation in Belgian law through the Act of 28 November 2022.
However, when the investigation results are used outside the mere execution of legal obligations, which appears to be a difficult line to draw in practice, the Act still applies. It may be the case if the employer subsequently decides to undertake further investigative actions against employees on the basis of their initial reports.
Employers should therefore carefully distinguish between activities falling within the scope of whistleblowing obligations and those subject to the private investigations framework.
6. Risks in case of non-compliance
Non-compliance with the new legal framework can give rise to a range of sanctions:
- Administrative sanctions and fines of up to 25.000 EUR;
- GDPR sanctions, including administrative fines of up to 20 million EUR or 4% of the total annual worldwide turnover;
- Nullity of evidence gathered in violation of specific provisions of the new Act, which will therefore not be upheld in court (Antigone jurisprudence does not apply). This is notably the case where the private investigation is conducted without the required internal policy.
7. Key takeaways
Employers must comply with the legal standards governing private investigations when conducting such internal investigations. In particular, employers intending to conduct private investigations must implement a policy governing private investigations by 16 December 2026. If there is no policy by this deadline, all internal investigations and their findings will be null and void.
We will reiterate this important message in early 2026. In the meantime, we are available to assist with drafting the required policy.
