
Jan Hofkens
Employment
Health
Fraud and internal investigations
Collective redress or class actions
Business Criminal Law
jan.hofkens@lydian.be
The Belgian legislator adopted a new Act for the regulation of private investigations on 8 May 2024.
This Act replaces the Act of 19 July 1991 regulating private detectives. Indeed, the current Act needed an update, because of developments in legislation, such as the data protection legislation, and because of changed possibilities regarding private investigation and the evolution of investigative techniques in general.
As the Act should soon be published in the Belgian State Gazette and thereafter enter into force, the International Fraud Awareness Week is a good time to summarize and highlight the Act’s main topics, as well as to focus on the suggested next steps.
Over the course of this week, we will discuss the following topics:
In today’s post, we will summarize the first topic and elaborate on the scope of application, including the question whether HR departments fall within scope of this new Act.
Private investigations as defined by the Act are carried out by a physical person by order of a principal (such as, for instance, an employer) and refer to the activity of collecting information by processing information on physical persons or legal entities or concerning the facts committed by them. The purpose of the investigation is to provide the principal with the information gathered to safeguard his/her interests in the context of an actual or potential conflict or in order to trace missing persons or lost or stolen property.
The Act has a broad scope of application: It does not only apply to companies with private investigation activities, but also to internal services for private investigation within companies. Such internal service refers to any service that is organized by a physical person or legal entity for its own benefit for the structural performance of private investigation activities or any service that presents itself as such. The term “structural” indicates that the activity must be embedded in the assignment of at least one employee. An internal service for private investigation could be a fraud cell of an insurance company or an in-house investigation department of a logistics service provider.
Certain activities are explicitly excluded from the concept of private investigation, such as the professional activities of a lawyer, notary, journalist, etc. and the activity of claim settlement in the insurance industry, insofar as it is carried out without conducting fraud investigations. Another interesting example of what is not considered as a private investigation are the activities carried out in the fulfilment of legal obligations, like investigations conducted by a prevention advisor following a formal request for psychosocial intervention or the handling of complaints introduced through a whistleblowing channel.
Whether or not a certain activity falls inside the scope of this Act, will probably be subject of debate and (future) case law. For example, how broad is the exception regarding investigations under the whistleblowing channel? The question arises whether private investigations which are the result of a notification through the whistleblowing channel are entirely excluded from the rules set out in the Act, or whether those rules apply to certain stages of that investigation. Moreover, in practice many companies have introduced a whistleblowing policy with a wide scope of application, allowing whistleblowers to report on matters that fall outside the scope of the Whistleblowing Act. What is the impact of the broad scope of the whistleblowing policy on the (in)applicability of the new Act to such investigations.
Whether an HR department that occasionally conducts an investigation, falls within the scope of the Act is debated.
For example, imagine an investigation is conducted by an HR manager to assess a potential termination for serious cause of an employee suspected of theft. Often only interviews are conducted, along with stock checks and potentially CCTV footage is checked. The investigation is led by an employee of the HR department: there is in that case no structural “internal service” in place.
The Act excludes HR departments conducting an “incident investigation” in relation to one of its employees from the obligation of having an identification card or from being part of a licensed company or internal service. The Act also explicitly states that all other provisions of the Act still apply.
The reference to “incident investigations” somehow confuses the scope of the legislation:
One interpretation of this specific exception for “incident investigations” could be that all HR investigations principally fall within scope of the Act, regardless of whether structural private investigation activities are usually carried out. If the private investigation is limited to the investigation of an incident in relation to one of its employees, there is no need to obtain an identification card or to have a license, but overall the Act will apply. This interpretation thus assumes that HR departments as a principle fall within the scope of the Act.
Another interpretation, which is brought forward by public officials who were closely involved in the drafting of this Act, could be that although it is not clear from the wording of the Act, HR departments/investigations are excluded from its scope. They would only fall within the scope of the Act if they have “structural” investigation activities and thus if they qualify as a “structural” internal service. Many “incident investigations”, conducted from time to time by an HR department, will likely not reach the required threshold to qualify as “structural”.
Employment
Health
Fraud and internal investigations
Collective redress or class actions
Business Criminal Law
jan.hofkens@lydian.be
Commercial law
Dispute Resolution
Ports and Logistics
Insolvency and Restructuring
Fraud and internal investigations
Business Criminal Law
yves.lenders@lydian.be
Business Criminal Law
Fraud and internal investigations
Dispute Resolution
stijn.lamberigts@lydian.be
Business Criminal Law
Dispute Resolution
Fraud and internal investigations
marie.vanbelle@lydian.be