A new law, passed on 8 May 2024 during a plenary session of the Chamber of Representatives, will impose stricter rules on companies’ internal investigations into employee fraud. Sometimes companies launch their own investigations, if a shop assistant is suspected of theft, for example, or a CEO is thought to have been misusing insider information, or a dock worker is alleged to be linked to drug gangs. Where a complete legal framework has been lacking until now, the new Private Investigation Act, which replaces the outdated Private Investigation Act of 1991, introduces big changes. The aim is to bring the rules for private investigation more into line with those for public investigation services.
The new law applies to all forms of information gathering – including incidental – on behalf of a client to protect its interests in a (potential) conflict and imposes strict conditions.
Legitimate reason
For example, from now on private investigations require a legitimate reason; random investigations (so-called ‘fishing expeditions’) are now prohibited, and no information on sensitive personal characteristics, such as religious or political convictions, may be collected.
License
Under the new law, private investigative activities may only be carried out by persons with a valid license, which requires, among other things, security screening and European nationality.
Regulations
In addition, companies wishing to investigate employees must have a set of regulations that lay down all the rules transparently. It is not yet clear whether this may be included in employment regulations.
Invalid evidence
Evidence gathered in violation of these requirements is considered invalid and cannot be used in court.
Moreover, there are numerous other rules that, if violated, do not constitute invalid evidence but may result in fines for the company. For example, when questioned, an employee who is under suspicion must always be informed of their rights, such as the right to assistance and the right to remain silent.
Exceptions
However, the law does have some exceptions. If the investigation is limited solely to questioning of the person concerned, without further information gathering, it falls outside the scope of the law.
Similarly, if a member of staff carries out the investigation, no license is required. But if the legal department, IT, or accounting have to be involved, the rules are stricter. Moreover, this exception applies only to checks on a company’s own employees, not to self-employed people who work for the company.
Entry into force and transition period
The law will enter into force shortly after its publication in the Official Gazette. Companies will have a transition period of two years for drawing up internal regulations. It is still unclear whether the law’s other provisions will apply immediately to internal investigations that are already underway.
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If you have any questions about this new law or about employment law in general, you can always contact our legal experts.
This article was written by Leonie Denooze, a specialist in employment and social security law.