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In one of the first cases in which the PIA was applicable, the Antwerp Labour Court of Appeal was called upon to rule on the findings of observations carried out by a private investigator in the context of proceedings seeking recognition of a dismissal for serious cause of a protected employee. Both at first instance and on appeal, the final report was declared null and void. The judgment of 26 December 2025 demonstrates the importance of strict compliance with the PIA.
The facts
The employee was both a member of the works council and of the trade union delegation and was provided with a company car. By means of a digital system, he was required to manually record the journeys he undertook. On the basis of this data, his working time and any mileage allowance were calculated. The employer established that the employee did not always use the system correctly and, at times, even entered fictitious addresses. The employer repeatedly confronted him with this issue and issued numerous warnings, all without result.
When the employer further discovered that the employee was a director of another company without having informed the employer thereof, a professional private investigator was engaged to investigate the facts and gather evidence.
Over three separate periods of one month each, the private investigator carried out a total of eleven observations. These observations revealed that, on several days, the employee remained at home at times when he reported being elsewhere and was therefore committing fraud in the use of the system. The findings were included in a final report.
The decision of the Antwerp Labour Court
Both at first instance and on appeal, the final report of the private investigator was declared null and void because the maximum permissible observation period had been exceeded.
The observations were considered excessively intrusive, as a result of which the report was held to be invalid. By carrying out too much repeated observations, the private investigator had in fact applied an investigation method reserved for police and judicial authorities, which, pursuant to Article 81 of the PIA, is prescribed on pain of nullity.
Like the Labour tribunal at first instance, the Labour Court of Appeal confirmed that an observation carried out under the PIA may, within a one‑month period, take place on a maximum of three days, whether consecutive or not. In this respect, the Labour Court of Appeal clarified that the relevant criterion is the number of days rather than the number of hours when determining the limits of an observation. As soon as an observation takes place on a given day, even for a limited period of time, that day counts in full.
However, the Labour Court of Appeal looked beyond the final report that had been declared null and void. The Court of Appeal found that other evidence of fictitious journeys was indeed available. It also referred to Article 8.4 of the Civil Code, which provides that parties must cooperate in the taking of evidence. The employee’s complete passivity therefore did not work in his favour, and he was unable to provide any adequate explanation for the fictitious journeys. On the basis of the registrations entered by the employee himself, the employer was able to demonstrate that the employee had effectively entered fictitious, non‑existent addresses. As the employee failed to provide any valid explanation in this respect, the Labour Court of Appeal ultimately recognised the existence of a serious cause.
Key takeaway
This judgment highlights the importance of strict compliance with the PIA: observations may constitute a useful investigative measure in the context of an internal investigation into employees, but they must be carried out strictly within the statutory framework. Although, as regards the application of the PIA, the case concerned an investigation conducted by an external private investigation firm, the judgment also serves as a warning for HR departments and internal private investigation services. The ruling clearly demonstrates that a single misstep may entirely undermine and render useless an otherwise carefully conducted investigation.
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