.jpeg?width=727&resizemode=force)
Why should you already consider private investigation now?
The law on private investigation does not only apply to external private detectives. Certain internal investigations carried out on your behalf may also fall under this legislation. This is especially true when you seek information about an employee or about facts attributed to them, in order to protect your interests in the context of an existing or potential conflict.
You may be involved, for example, when you conduct an investigation into:
- Internal theft or fraud
- Leaking confidential information to a competitor
- Misuse of company resources or materials
- A serious breach of internal procedures
However, not every control activity automatically counts as private investigation. The law excludes, among other things, certain audits that do not collect information about individuals to establish unwanted facts, as well as certain activities related to legal obligations or cybersecurity. You must therefore assess your practices on a case-by-case basis.
Learn more: "Private investigation in employment relationships: what does the law say?"
Why is the internal regulation indispensable?
When the person subject to the investigation is your employee, a private investigator may only accept the assignment if the consent to conduct the investigation and its conditions are expressly and clearly included in a regulation.
This requirement applies not only when you engage an external service provider. It also applies when your HR department itself conducts private investigation in the context of an incident involving one or more of your employees. The HR staff are exempt from the permit and identification card requirements but remain subject to the other rules of the law.
The regulation is therefore not a mere administrative formality. From 16 December 2026, a service provider will no longer be allowed to accept certain private investigation assignments concerning your employees if your regulation does not clearly provide for this type of investigation. The collected evidence could then be disregarded and no longer support a sanction or dismissal.
What must your internal regulation include?
The law does not impose a single model. However, your regulation must be sufficiently clear and transparent so that your employees understand in which situations an investigation may be conducted and within which limits.
Include, among other things:
- The intended situations: theft, fraud, information leaks, misuse of resources, or serious breach of procedures
- The permitted methods and the limits to be respected for each type of investigation
- The persons competent to decide, conduct, or monitor an investigation
- The conditions for engaging an external private investigator or your HR department
- The rights and guarantees of the employee concerned, especially regarding information, interview, and processing of their personal data
- The rules for retention of and access to reports, documents, and collected information
Your regulation must also be consistent with your existing policies regarding GDPR, use of e-mail and internet, camera policy, confidentiality, and information security. Also check the consistency with your disciplinary procedures.
Which guarantees must you include?
Your internal regulation does not give you a general right to supervision. You must be able to show a legitimate interest for the investigation and establish a link between that interest, the purpose of the assignment, and the information sought.
You must also limit your investigation to appropriate, relevant, and proportionate means. The law prohibits, among other things, collecting or sharing information about political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation, or racial or ethnic origin.
The law also regulates various investigation methods:
- Observation of the same person is limited to less than four days, namely 96 hours, whether consecutive or not, per month for the same purpose
- Tracking movements using a device is prohibited, except with prior consent and subject to other applicable rules
- An interview requires, among other things, the consent of the person interviewed and prior information about the reason for the conversation, its purpose, and their rights
- Non-publicly accessible data may not be consulted without the required permissions
- Illegally obtained information may not be used in the investigation
How do you prepare without waiting for an incident?
You can start with an inventory of your current practices. Map who conducts investigations, which tools are used, which external service providers you engage, and which reports or data you retain.
Then check the following points:
- Your current practices: HR investigations, IT controls, consultation of camera footage, and investigations by managers
- Your existing policies: labour regulation, e-mail and internet policy, camera policy, confidentiality rules, and disciplinary procedures
- Your external service providers: a private investigation company must have the required permit and you may not engage a non-permitted company
- Your internal procedure: facts to be investigated, legitimate interest, competent persons, possible investigation methods, accessible data, retention period, and persons allowed to consult the file
What does Securex do for you?
Securex provides you with a model internal regulation to help you organise your investigation practices and respect the rights and privacy of your employees.
For additional information or further questions, you can contact your Legal Advisor via myHR@securex.be.
Entry into force
This is a definitive law. The law of 18 May 2024 was published in the Moniteur belge on 6 December 2024 and entered into force on 16 December 2024.
You must therefore have your internal regulation by 16 December 2026 at the latest if you want to continue having private investigations concerning your employees conducted within this framework.
