The Belgian Private Investigation Act, which will replace the 1991 Act regulating private detective activities, introduces significant changes that employers must address. With the Belgian parliament’s passage of the Act on 8 May 2024, and its publication in the Belgian Official Gazette on 6 December 2024, the Act has come into force and employers should act now to ensure they are compliant.
A. Key highlights for employers
1. Modernisation of the legal framework
The Act reflects advancements in investigation methods and aligns with GDPR standards, safeguarding individual rights while supporting legitimate workplace investigations.
2. Extended scope
The new Private Investigation Act applies broadly to external private investigation firms and internal departments conducting investigations within companies. Key points include:
- Companies or internal departments conducting private investigations must obtain certification to operate lawfully;
- Internal activities by HR or similar employees may fall outside the Act’s scope, depending on their purpose and nature.
3. New obligations for employers for engaging licensed investigators
Employers must draft a clear policy outlining the circumstances and methods of investigations, ensuring compliance with data privacy safeguards. Before using investigation findings, employers must notify employees about the investigation’s key details, including its purpose, scope, timeline, and their rights regarding data access, correction, and deletion. In addition, if an employer wishes to engage a licensed investigator, it is critical to have an appropriate clause in the work rules or a specific policy authorizing such investigations. Without such a clause or policy, any evidence gathered by the licensed investigator will not be admissible in legal or disciplinary proceedings. Employers are advised to include such clauses in their work rules to ensure this option is available when needed.
B. Implications for Non-Compliance
Employers that fail to comply with the Private Investigation Act face serious consequences, including:
1. Legal sanctions
Non-compliance may result in administrative fines ranging from EUR 100 to EUR 25,000 with higher penalties for repeated offences.
2. Invalidation of investigation findings and reputational damage
Non-compliance not only invalidates investigation findings but may also harm an organisation’s reputation, especially in cases involving breaches of employee rights or data protection.
C. Next Steps for Employers
With the Act now in force, employers should:
- Develop or update policies and/or work rules to ensure compliance with the new private investigation requirements.
- Consult legal experts to ensure compliance with certification and procedural obligations.
- Implement robust internal controls to ensure transparency and proper communication during the private investigation process.
