Employers in a tighter straitjacket with the new Belgian Act on private investigations

On 18 May 2024, the new act on private investigations (the Act) was adopted. Published in the official Gazette on 6 December 2024, the Act enters into force on 16 December 2024.

This Act modifies the existing legal framework on private investigations.  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.   

Employers will have to comply with the new rules, when conducting private investigations regarding their workers, via their own internal services or by using the services of an external PI company. The Act is by law considered a matter of public order, and thus excludes any possibility of deviating contractual provisions or “opting out” of certain obligations. 

1. On the material scope, “an activity of private investigation” is defined as the activity  performed by a physical person, at the request of the principal, consisting of providing gathered intelligence obtained by processing information on physical persons or legal entities or regarding the circumstances of facts committed by these persons or entities,  aiming at providing the gathered intelligence to the principal in order to protect the latter’s interests in an existing conflict or in order to avoid a potential conflict or to track missing persons or lost or stolen goods.

Excluded from the Act are individuals such as the health and safety prevention advisor who is charged with formally investigating a complaint regarding a psychosocial risk in the workplace (stalking, harassment, violence, …) or the person following up on a whistleblower’s notification: both of these roles are performing their legal duties rather than acting upon the employer’s instruction. However, if, at a later stage, the employer decides to take further investigative actions against workers on the basis of their reports, these actions may fall well within the scope of the Act.  

As regards the personal scope, the Act applies to external PI service providers (e.g. detective agencies/forensic services providers) as well as internal services within a company if these are performed in a structural manner. There is some confusion as to whether the Act also applies to an HR-manager who is merely conducting a punctual/occasional investigation into one of its employees suspected of unacceptable behaviour and therefore not operating in a structural manner.   As the Act explicitly requires investigations into “incidents” to be conducted by members of the HR department “in compliance with the Act”, our analysis of the Act is that these rules (except for the licence requirement) will also apply in such situations, if the conditions of the material scope are met.     

2. At the latest by 16 December 2026 employers will have to draft a policy that sets out clearly and transparently the authorisation (by workers) and the terms and conditions to conduct an internal investigation. The Act does not impose an obligation to insert this policy into the company’s work rules. The policy may have to be submitted to the works council for advice (or, in its absence, to the trade union delegation) since the Act requires consultation with social partners over the policy. 

3. As of 16 December 2024, several procedural and substantive rules will govern any private investigation conducted in the workplace aimed at investigating persons; if the investigation is merely aimed at investigating company processes and procedures, without being focused on certain persons, it would not apply.  In practice, the distinction between these two situations may sometimes be difficult to draw.  Moreover, some of the rules do not appear to readily fit into certain processes and regulations directly affecting employment relationships and labour relations and will inevitably impact the employer’s right to exercise its (legal) authority vis-à-vis its employees in a flexible and not strictly regulated manner.     

In general, the private investigator is not allowed to obtain specific information on sensitive topics/areas nor gain access to data that is not in the public domain, or to areas that are not publicly accessible (without permission), to observe homes, private areas or areas where people have reasonable expectations of privacy, etc. Furthermore, the Act enumerates a wide array of research and investigative techniques (such as interviews) that are only allowed if the person in question is transparently informed of their rights and with their prior consent. 

A written report must be drafted on every interview, containing certain data. If the company uses an external investigator or its “structural” internal service, stringent conditions apply regarding drafting, registering and saving of documents outlining the exact scope and justification of the legitimate goal of the private investigation to be conducted. 

4. One of the main objectives of the Act is to ensure compliance with rules and regulations on data protection.   For example, under the Act the various stakeholders are required to collaborate with each other and outline how they will each ensure their respective compliance duties under the GDPR. Failure to inform workers of their rights under GDPR and/or to allow them to exercise these rights may invalidate the investigation.    

5. Infringements on a wide array of obligations under the Act will inevitably render the evidence absolutely null and void, excluding any possibility for the judge to reexamine its value and accept the evidence, notwithstanding the infringement. 

This is the case, for instance, for infringements on the duty to obtain licences/authorizations, the absence of a policy (as of 16 December 2026), investigations into prohibited facts (e.g. religion, etc), investigations into matters reserved to national intelligence and security agencies, social conflicts or threats or disturbance of public order, prohibited investigative methods (e.g. force, methods reserved for authorities…), prohibition to use evidence that was obtained illegally or that one can be expected to know it was obtained illegally, etc..

In addition, the Act also provides for extensive control and sanction mechanisms. 

In summary, the Act introduces a strict regulatory framework for lawfully conducting workplace investigations in Belgium.  From the day it comes into effect, employers will have to abide by strict rules (of public policy) for investigating workplace incidents regarding workers, whether conducted internally or with the assistance of external licensed professionals. The Government’s declared position that the Act will not make life more complex for business appears to be contradicted by the multitude of substantive and procedural rules which the Act introduces for workplace investigations.  Moreover, some of its rules appear not to align well with some basic provisions of employment law (in the context of disciplinary action or dismissals for cause). 

Finally, each business, irrespective of its size, has two years to draft and adopt a policy on the principle and terms and conditions for conducting private investigations.  That policy must observe the strict regulatory framework which the Act introduces.