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Unlocking the importance of the probative value of the internal investigation

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In the framework of the Fraud Awareness Week, we have decided to dive into the topic of the new Act on Private Investigations. In our previous posts (see here and here), we have discussed the core elements of the Act. 

Today we are going to look into the probative value of the internal investigation and the consequences for companies in case of non-compliance with this Act. In our last post, that will follow by the end of this week, we will give you a concrete step plan on what to do next to prepare yourselves for this new Act.

Probative value and importance of compliance

If companies do not comply with the Act, administrative sanctions could be imposed. Other sanctions, such as criminal penalties for hacking, similarly remain relevant.

Moreover, the nullity sanction is not to be overlooked. The sanction of nullity is indeed provided in the Act for some rules and obligations (such as not having a policy on private investigation as an employer). If evidence has been collected in breach of these rules and obligations prescribed under penalty of nullity, any probative value of the investigative acts concerned is excluded upfront. In case of non-compliance with other provisions of the Act, not prescribed under penalty of nullity, the Antigone rule applies: the collected evidence can be relied upon before a court unless the reliability of the evidence has been adversely affected by the committed illegality or if the use of the evidence would violate the right to a fair trial of the person concerned. The Act stipulates that it is up to the courts to whom findings of a private investigation are submitted to decide on the probative value of those findings.

Even for HR departments, it is highly recommended to consider the rules and guidelines provided by the Act as a good practice when conducting an interview or drafting an investigation report, etc. Moreover, it should be checked whether a company has all required policies in place to check CCTV footage, monitor email communication, use a track-and-trace system on a company car, etc. in compliance with the GDPR and other legislation. It cannot be ruled out that courts will rule in a more severe way and exclude findings of private investigations that do not respect these rules.

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