Private Investigation Act: an update
In our newsletter of 3 April 2025, we informed you about the publication of the Private Investigation Act (“PIA”) and its impact on HR personnel. Nearly a year has passed since then. With this newsletter, we would like to provide you with an update and remind you of the upcoming obligations that must be complied with under the PIA.
Does an HR department that only occasionally performs private investigation activities fall within the scope of the act?
In our newsletter from last year, we briefly discussed the debate on whether HR services that only occasionally carry out private investigation activities fall within the scope of the PIA.
First case law on the Private Investigation Act at the workplace
The importance for employers to comply with the provisions of the PIA is further demonstrated by the first case law regarding the application of the PIA at the workplace, which dates from the end of last year.
In this case, the employer engaged an external private investigator during an investigation into the dismissal due to urgent reasons of a protected employee. The court found, however, that the rules of the PIA had not been complied with during this investigation. As a result, both the investigation by the external private investigator and the resulting investigation report were declared null and void and could not be used in the proceedings. Without these documents, the employer was unable to sufficiently demonstrate the urgent reason, as a result of which the court ultimately ruled that it had not been proven. On appeal, the court of appeal confirmed that the investigation report had to be disregarded due to a violation of the PIA, but nevertheless ruled that the remaining evidence did establish an urgent reason.
It is now generally accepted that these HR services fall within the scope of the PIA. Except for the permit requirement, they need to follow the PIA rules as well. At the same time, it is still unclear whether all the requirements, like drafting certain investigation documents, actually apply to these HR services.
What does this mean in practice?
Taking the above into consideration, it is now more important than ever to ensure that your HR practices regarding the collection and examination of information about applicants and employees are fully compliant with the applicable regulations. We refer to our newsletter of 3 April 2025 for a brief overview.
In addition, we recommend getting all the documents required under the PIA in order on time.
More specifically, this means in the first place that regulations on private investigations must be drawn up. As a reminder, the PIA stipulates that the authorisation and modalities of private investigations must be included in such regulations.
The law stipulates a period of two years for this, which means that the deadline is 16 December 2026. If a private investigation is carried out after that date without regulations having been drawn up, all findings from that private investigation will automatically be considered null and void.
When you, as an employer, actually carry out a private investigation, additional documents often need to be drawn up. Which documents exactly, depends on who is conducting the investigation, for example an external private detective or an internal employee, as well as the specific investigative actions that are being carried out.
How can Pro-Pay assist you?
We are happy to assist you in preparing the necessary documents or providing templates. Of course, we are also available to answer any questions you may have about the PIA.
If you have any questions about this service or the associated fees, please do not hesitate to contact us at legal@propay.be.
