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Prepare for the New Act on Private Investigations

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In our previous posts on the Act on Private Investigations (see here, here and here), we explained the main topics of this new Act. To conclude this Fraud Awareness Week, we will give some tips and insights on how to properly prepare a company for this Act.

The Act has not entered into force yet. It is expected that the Act will be published in the Belgian State Gazette and enter into force over the coming weeks. 

The legislator took, to some extent, the significant impact of the Act into account by providing some transitional provisions. For instance, and subject to compliance with certain conditions, companies or internal services carrying out private investigations will be given a 6-month period to apply for a license after the Act enters into force. Without the proper training and an identification card, employees of these companies or internal services are allowed to conduct their activities for an 18-month period. Principals/employers wishing to carry out a private investigation concerning an employee, will enjoy a 2-year period to draft or adopt their policy on private investigation in the workplace.

This does not mean that today no preparation or action can be taken as an organization. As fraud incidents and other (criminal) incidents are sadly taking place, organizations need to be able to deal with these facts once they occur. 

In preparation of this new Act, we recommend the following guidelines for organizations and HR-services:

  1. Take preparatory actions and verify your data storage and retention policies, as well as other policies in relation to the control of CCTV footage, electronic online communication, etc. and make sure that the relevant policies of the organization meet the regulatory requirements and allow to collect and analyze data that might need to be investigated. 
     
  2. Prepare a policy (as an employer/principal) on private investigations, as well as the modalities, and make sure the policy is aligned with the policies considered in the previous bullet point. If a company would ever consider or would need a private investigation, either conducted by an external company or an internal service, the internal policy on private investigations is an absolute requirement to start the investigation. Employers have two years’ time to implement such policy, but we recommend to start in due time. We have a template available which can be used as a work tool for organizations to create their own policy. Moreover, most rules set out in the Act will apply as of the 10th calendar day following publication in the Belgian State Gazette. That means that as of that moment in time, investigation methods (such as interviews), investigation reports, etc., need to comply with the Act.
     
  3. Think about a clear timeline in relation to the timing and duration of the investigation, access to relevant information (hard copy documents, other information sources, etc.), reporting, etc.
     
  4. Think about the composition of a proper investigation team, that can potentially meet the personal and integrity requirements.
     
  5. If needed (e.g. if your organization has an internal service) apply for a permit in due time.

 

In case of questions, do not hesitate to reach out for more information.

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