New rules for private investigation of employees

During its plenary session on 8 May this year, the Chamber adopted the legislative proposal regulating private investigation.  The purpose of this new law is to review the existing legal framework governing the practice of private investigation. In this article, we will outline some of the changes introduced by the law that are relevant to employers who are considering using private investigation services. 

Adoption of a specific clause for employers

The first new provision is the requirement for employers to set out the authorisation to carry out a private investigation and the terms and conditions of private investigations in regulations if the person concerned by the private investigation is employed by the instructing party. This means that unless an appropriate provision is included in a regulation, an employer will not be able to use private investigation services for an assignment concerning one of its employees.  

While the law does not specify the legal nature of the regulations that must contain the clause in question, the travaux préparatoires (preparatory works) refer to labour regulations, a company’s collective labour agreement or a decision by the works council. 

Companies have 2 years from the date the law comes into force to comply with this new provision. If the company has not adopted a valid clause of this kind, the law stipulates that the investigation report is null and void, and cannot therefore be used in legal proceedings. The Antigone jurisprudence, which in certain cases allows the admission of evidence gathered in violation of certain rules, could therefore not be applied.

 

Obligation to pass on certain information to the person concerned in the private investigation

If, at the end of the investigation, the employer who has decided to conduct a private investigation decides to use the report sent to him by its assignee he must communicate certain information to the person concerned: 

• identity and contact details of the data controller or their representative; 
• nature and purpose of the processing of their personal data; 
• start and end dates of the private investigation;
• the existence of the right to access, add to, correct or delete inaccurate personal data concerning them free of charge and the modalities under which this right can be exercised with the assignee.

Legal validity of the private investigation report

Finally, the law now explicitly states that in claims based on the results of a private investigation, it is up to the judge to determine whether the private investigation was conducted in accordance with the law.  Apart from violations of the law expressly prescribed under penalty of nullity, the judge has full discretion as to the probative value that can be attributed to the findings of a private investigation.