On May 18, 2024, the Act regulating private investigations was adopted. This new legislation has already partially entered into force as of December 16, 2024.
The Private Investigation Act is not only relevant when an employer engages an external investigator (formerly referred to as a “private detective”), but also when an investigation is conducted internally within the company. This includes, for example, investigations carried out by an internal audit department or incident investigations conducted by members of the human resources department.
In this article, we highlight several key points of attention under the Private Investigation Act.
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What is the scope of application?
The Private Investigation Act defines private investigation as any activity whereby a natural person, acting on behalf of a client, gathers information about individuals or about the circumstances of certain facts, with the aim of safeguarding the client’s interests in an actual or potential conflict.
This may arise, for example, where there is a suspicion of theft, fraud, or other serious misconduct, possibly committed by an employee. Before imposing a sanction (such as dismissal for urgent reasons), the employer must have sufficient certainty regarding the underlying facts.
It is irrelevant whether:
- the employer engages an external private investigator;
- the investigation is conducted by an internal (audit) department; or
- an incident investigation is carried out by members of the HR department.
In all of these cases, the Private Investigation Act applies.
External private investigators and employees of internal investigative services (a typical example being internal auditors) are required to obtain a license. Members of the HR department are exempt, provided that their activities are strictly limited to conducting incident investigations.
Certain investigations are explicitly excluded from the scope of the Private Investigations Act, such as psychosocial investigations conducted by a prevention advisor or investigations carried out under whistleblower schemes.
2. How must an investigation be conducted?
Private investigations must be carried out in accordance with a strict methodology. The Private Investigation Act provides, among other things, for the following requirements:
- Prohibited areas of investigation: no investigation may be conducted into political or religious beliefs, sexual orientation, or involvement in or membership of trade unions.
- Investigation team: at the start of the investigation, it must be clearly established who forms part of the investigation team.
- Assignment register and investigation file: each investigation must be recorded in an assignment register and supported by an investigation file.
- Investigation report: no later than one month after the final investigative act, a written investigation report must be provided to the client.
Attention: in an HR context, caution is required when using interim reports. If the person authorized to dismiss an employee acquires sufficient knowledge of the facts prior to the final report, a labor court may rule that the three-day time limit for summary dismissal already started to run on the basis of the interim report, rather than the final report.
3. What about private investigations involving an employer's own employees?
A key innovation introduced by the Private Investigation Act is the obligation for every employer to establish an internal policy setting out, in a transparent manner, the modalities governing potential private investigations.
This internal policy may take the form of a standalone company policy, subject to prior consultation with the employee representatives. It can also be incorporated as an annex to the work regulations.
The Private Investigation Act provides for a two-year transition period. This means that companies must implement such an internal policy no later than December 16, 2026.
4. What are the consequences of non-compliance?
The court independently assesses the evidentiary value of the investigative findings. Failure to comply with the Private Investigation Act may result in the collected evidence being declared invalid, even where no explicit statutory sanction is provided. This may have serious consequences in employment law disputes, such as challenges to a dismissal for urgent reasons.
In addition, administrative fines may be imposed. The Data Protection Authority may also impose fines in the event of violations of the GDPR.
5. Time to take action
With the statutory deadline of December 16, 2026 approaching, companies are advised to timely take steps to implement an internal policy governing private investigations in the workplace.
Our employment law team has the expertise to assist your organization throughout this process. Do not hesitate to contact us.