Partnerblog
On 16 December 2024, the Private Investigation Act (PIA) came into force, replacing and updating the Private Detective Act of 1991.
The PIA has a significant impact on the manner in which internal investigations must be conducted in the workplace, particularly when such investigations concern employees. As the PIA already applies today, employers are required to fully comply with its provisions when, for instance, proceeding with a dismissal for serious cause. Failure to do so may result in the risk that all evidence collected to substantiate the dismissal is declared null and void. Therefore, this article provides a summary of the impact of the PIA on HR investigations, focusing on its scope, procedural requirements, and consequences in case of non-compliance.
Scope of application and definitions
The PIA applies to all forms of private investigation, defined as the activity performed by a natural person on behalf of a principal (opdrachtgever/mandant) that consists in the collection of information about individuals or events for the purpose of protecting the interests of the principal in the context of an actual or potential conflict. Notably, background checks conducted by HR personnel – such as reviewing LinkedIn profiles or contacting references – do not fall within the scope of the PIA, provided they are limited and based on information voluntarily provided by the candidate.
While the PIA impacts all companies performing private investigations on its employees, specific obligations such as possessing a license and an identification card only apply to « internal investigation services ». This refers to a unit within an organization that performs investigative activities on a structural basis. Depending on the circumstances, HR departments may therefore qualify as an internal investigation service.
The PIA contains a list of a limited number of activities that are excluded from its scope of application (e.g., activities performed by a company auditor, lawyers, or journalists).
Organizational impact: key obligations to keep in mind
License: If an HR department qualifies as an internal investigation service, prior authorization or a license from the Ministry of Interior must be obtained in order to lawfully conduct private investigations. Once obtained, the license is valid for five years.
Identification: Further, certain individuals from the organisation must have an identification card before engaging in private investigation activities. This includes among others the person who effectively manages the company or an internal investigation service, agents (opdrachthouder/mandataire) and the private investigators themselves. Also, the identification card is valid for five years.
Internal regulations:If the subject of the investigation is an employee,companies must draft a regulation outlining permissible investigative actions and the conditions that must be respected in this regard. These rules must be drafted in consultation with the social partners ideally and communicated to employees. The content of the rules may be provided in a collective labour agreement, the work rules, or a decision of the works council. If the subject of the investigation is a service provider, a consultant or a self-independent CEO or CFO, no regulation is required. Companies have until 16 December 2027 to comply with this obligation.
Assignment register: At the start of each investigation, if the private investigator is employed by the principal, he must maintain an assignment register. This register must include the principal’s name, a clear description of the assignment, the date it was entrusted, and the date of completion.
Investigation file: For each assignment, the private investigator must compile an investigation file containing all documents and materials prepared or obtained in the course of the investigation, a chronological record of investigative actions, the methods and resources used with their justification, the names of involved investigators, notes, and data carriers holding information related to the investigation.
Investigation report: The agent must prepare an investigation report that includes a reference to the assignment document, the names of the agent and the private investigators, the start and end dates of the investigation, detailed conclusions, the investigative acts performed with their locations and times, supporting documents, the type of report (interim or final), the names of informed persons for the final report, and the location, date, and signature. A final report must be submitted to the principal within one month of the last investigative action and must be signed by all participating private investigators. If the employer decides not to act on the findings, the report must be destroyed unless retention is justified by a legal obligation or a legitimate interest. If action is taken, the individuals concerned must be informed of the investigation and their rights, including access to the report and the ability to supplement, correct or delete incorrect information. Until the individuals concerned have had the opportunity to exercise their rights of access, correction, supplementation, or deletion, the principal may not use the information from the report.
Sanctions and evidentiary consequences
The PIA introduces an administrative enforcement regime, replacing the criminal sanctions of the previous Private Detective Act. In particular, inspectors may issue warnings, propose amicable settlements, or impose administrative fines ranging up to EUR 25,000. The amicable settlement offer is equal to 30% of the amount of the administrative fine (with a minimum of EUR 100). Repeat offenders face increased penalties.
Evidence obtained in violation of certain provisions of the PIA is inadmissible in legal proceedings. For example, breaches of the licensing requirements, a lack of a transparent regulation by the principal or unauthorized data collection result in the inadmissibility of the evidence, as well as any subsequent findings or consequences derived therefrom. For other violations, courts apply the so-called Antigoon doctrine to assess whether the evidence obtained from the investigation is admissible, assessing the impact on the reliability of the evidence and whether the right to a fair trial is jeopardized.
Conclusion
The PIA marks a significant shift in the regulation of private investigations, with profound implications for HR practices. Employers must assess whether their internal services like HR departments qualify as internal investigation services and take steps to comply with licensing, documentation, and privacy requirements. Even occasional investigations that are not performed within an internal investigation service must adhere to substantive provisions of the PIA, and failure to do so may result in sanctions or evidentiary exclusion.
However, it should be highlighted that the PIA raises numerous questions regarding its interpretation, and all indications suggest that an interpretative law is likely to be enacted in the near future.
