It is not unusual for an employer to call on the services of a private detective. This might be, for example, to establish that a sales representative has written false reports or that an employee is involved in activities that compete with those of the employer.

What value should be placed on the results of such an investigation?

For the results of the investigation to be admissible in court, the employer must comply with some legal obligations.

 

Legal Background

 

Before 1991, case law was reluctant to accept private detective reports as evidence due to a lack of a legal framework. Since 1991 and the adoption of the Act of 19 July 1991 regulating the activities of private detectives, the use of the services of a private detective to “gather evidence or ascertain facts that lead or can lead to conflicts between individuals or that can be used to resolve such conflicts” (Art. 1) is now formally permitted. Evidence obtained by a private detective has thus gained in legal legitimacy.

In 1992, the Act of 8 December on the protection of privacy with regard to the processing of personal data (now replaced by the Act of 30 July 2018) further strengthened the framework for the use of private evidence before the courts. The key points from recent case law include:

 

  • The obligation to inform the investigated person: the employee must be informed of the identity of the data controller, their right to object to any data processing collected and to correct incomplete or irrelevant information;
  • The application of Antigone case law: a judge may authorize the use of irregularly obtained private reports provided that the reliability of the evidence is not compromised and the rights of the defence are respected.

 

New Act of 8 May 2024

 

In the increasingly significant context of the GDPR, a new Act regulating the profession of private detective was adopted on 8 May 2024, which further frames the use of private investigations. Here are the key points:

 

  1. Obligation to include a clause in the work regulations: the employer must provide a clause explicitly and transparently framing private investigations involving employees in the work regulations or in a collective bargaining agreement;
  2. Non-applicability of Antigone case law? The Act states that in the absence of such a clause, evidence obtained by a private detective will automatically be considered null and void. It remains to be seen how courts will handle the “nullity of this evidence” in light of the Antigone case law;
  3. Reinforcement of the information obligation: the employer must inform the employee about the identity of the data controller, the nature and purpose of the data collection, their rights regarding access, correction, and deletion of personal data, etc.

As a result, employers are strongly advised to update their work regulations to comply with these new requirements, which will come into force within two years of their publication in the Belgian State Gazette.

 

Mr. Frédérique Gillet and Mr. Amal Akoudad