
Jan Hofkens
Employment
Health
Fraud and internal investigations
Collective redress or class actions
Business Criminal Law
jan.hofkens@lydian.be
This is the second post on the new Act on Private Investigations in which we will highlight the impact of this Act on the formalities, the course of private investigations and the composition of the investigation team and the importance of GDPR for investigative activities.
During this Fraud Awareness Week, we thought it a good idea to zoom in on this new Act on Private Investigations. In our previous post you can find more information on the scope of application of this Act.
The Act entails a lot of new rules for private investigative activities and will therefore have a significant impact on the private investigation sector.
New or extended formalities include: a mandatory license, identification card, investigation file, assignment register, policy (for employers), investigation report and reporting obligation, etc.
Not all formalities apply to all companies. If for instance an HR-department of a company is merely investigating an incident in relation to one of its employees, there is no need to have an identification card or to be part of a licensed company or internal service for private investigation.
Apart from the formalities, the Act also creates a new framework for certain investigative activities such as conducting interviews, consultation of non-publicly automated files containing personal data and carrying out observations. For example, certain information must be disclosed to the interviewee prior to the start of the interview, the interviewee can be assisted by a person of their choice during an interview and an interview report, containing a list of information, should be drafted.
The Act has created a required profile for certain people involved in a private investigation, such as persons in charge of a company or an internal service, persons who are not in charge, but either are part of the board of directors, or exercise control over a company, contractors (i.e. the physical persons who accept the assignment on behalf of the company or the internal service), private investigators (i.e. the physical persons who carry out activities of private investigation) and persons with access to the (content of) reports of the private investigators or who may obtain knowledge of the personal data of those involved or any other person involved in a private investigation.
This required profile might have some influence on the future composition of an investigation team.
Some examples of these personal conditions are related to age, a clean criminal record (albeit there are some exceptions), nationality, etc.
Next to these personal conditions, there are also some integrity requirements. Integrity, loyalty and discretion are key characteristics of the perfect profile, as well as respect for fundamental rights and democratic values.
More generally, it is recommended to think carefully about the composition of an investigation team. If the law foresees a deadline within which a decision has to be made to take action (e.g. to impose a sanction upon an employee, in case of a dismissal for cause of an employee or in case of the termination of a trade agent), it is recommended to only inform the competent persons after completing the investigation, once all the facts have sufficiently been identified, and not to involve them in the investigation. Therefore, when composing an investigation team, one should always bear in mind not to involve persons who can legally represent the principal and who are competent to impose a sanction, dismiss or otherwise terminate a work relationship. These persons should only be informed of the results from the investigation once it is finished. Otherwise, questions could arise afterwards at what point in time (during the investigation) the competent person had gained sufficient knowledge to take a decision.
The Act focuses on the rules set out in the GDPR and the protection of privacy of the person involved and other identifiable parties. The general rules on privacy, including the principles of legality, transparency, legitimate interest and proportionality, therefore apply to private investigations, unless the Act provides specific, restrictive, or additional rules or exceptions.
Employers who order private investigations at work in relation to one of their employees, will only be able to do so in a valid way insofar a policy is put in place on the rules regarding the private investigation and the authorization to execute such investigation. This important new formality will determine the entire investigation’s validity as this requirement is prescribed under penalty of nullity. This new rule will not enter into force immediately as a transitory period is provided.
No later than one month after the last investigative act, a written investigation report needs to be drafted. If the principal decides to use the information in the final report, he/she informs the contractor, who accepted the assignment, at the latest within 30 days after receiving the report. The contractor needs to inform the person concerned (i.e. subject of the investigation) and other identifiable parties of whom personal data was processed on the identity and contact details of the data processor, the nature and purpose of the processing, start and end date of the private investigation, rights to review, complete, correct or remove incorrect personal data. The principal is not allowed to use this information for as long as the person concerned or identifiable parties were not informed and therefore able to exercise their right to review, complete, correct or remove incorrect personal data.
If the private investigator or the contractor receives an investigation assignment regarding facts which qualify as offences or which will clearly result in offences or if they discover any offences during the assignment, they are obliged to report this in writing to the prosecutor and/or to the investigating judge. This requirement only applies if the facts are clear and if the investigator or the contractor knew or should have known that these facts constitute criminal offences, for example theft or violence. The prosecutor or investigating judge can subsequently order the suspension or discontinuation of the private investigation.
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