Newsflash The Private Investigation Act

On December 16, 2024, the Private Investigation Act (PIA) came into effect.

Its purpose is to thoroughly revise and modernize the existing legal framework on private investigations. It will have a significant impact on HR investigations.

This newsflash outlines a selection of key points of the PIA for employers.

 

When does the PIA apply?

It applies to almost all internal investigations conducted on behalf of an employer into employees or third parties (such as external service providers or consultants). A “private investigation” under this law is broadly defined as:

• the collection (by a natural person (eg an employee) on behalf of a client (eg an employer)) of information obtained through processing data about natural or legal persons or concerning the circumstances of acts committed by them;
• with the aim to provide the collected information to the principal (eg the employer), so it can be used in a current or potential conflict to protect the principal's interests.

This includes almost all internal (audit) investigations into individuals, and almost all HR investigations in the context of, for example, disciplinary measures, and dismissals (for serious cause). The procedure set out in the PIA will also apply to investigations carried out by foreign investigation teams in Belgium.

Some activities are explicitly excluded from the PIA's scope, such as the activities to fulfill legal obligations or assignments that don’t have private investigation as their primary goal. This includes investigations conducted in the framework of a whistleblower report, or those carried out by a prevention advisor under the health and safety regulations.

 

What employers need to know about the PIA

• The investigation must be conducted according to a specific, written procedure, and within specific legally defined timeframes, including:
• maintaining a task register;
• maintaining an investigation file;
• written minutes of interviews, and prior information and valid consent obligations;
• preparing an investigation report within 30 days of the last investigative action, with specific mandatory mentions, and with transparency obligations towards persons identifiable in the investigation report, in line with data subject rights under the GDPR; and

If this procedure is not strictly followed, in litigation proceedings a court could decide to disregard the evidence gathered under the investigation.

• Regulatory requirements, such as:
• The introduction of a licensing requirement for “internal services for private investigation.” An “internal service” is defined as soon as acts of private investigation, as described above, are carried out structurally, and these acts are included in the task distribution of at least one employee of a service (so, in principle, any “compliance team” or legal team with one employee with such a task package will likely need to get a license).

This license must be correctly applied by by June 16, 2025, under penalty of (among others) nullity of the investigative acts.

• Requirement to obtain an identification card for those conducting private investigation acts within an internal service (there's an exception for a personnel service, see further below). These cards must be obtained within 18 months of obtaining the license, under penalty of nullity of the investigative acts.

HR department staff are exempt from these licensing and identification card requirements. The rest of the requirements under the PIA, like following the investigation procedure, still apply to them, though.

• Policy requirement: the obligation to establish an internal private investigation policy by December 16, 2026. Not complying with this obligation can result in the invalidation of the evidence obtained from the investigation.
• The PIA provides for prohibited investigative domains, such as investigations into political opinions, involvement in trade union organizations, social conflict, sexual behavior of a person.

These domains are prohibited under penalty of (among others) nullity of the investigation.

Key HR takeaways

The PIA has a major impact on HR practices, especially because very often its investigation process will need to be followed, for example in the context of disciplinary or dismissal investigations, collecting information on performance of an employee.

The combination of the requirements under the PIA and other labor law requirements (for example, the timing requirements for a dismissal for serious cause) can be challenging, and requires:

• training and awareness of all HR stakeholders
• clear arrangements on responsibilities, and who's involved when during the process
• templates of mandatory investigation documents

Our team is ready to take all your questions on the PIA, and to assist you in any possible way to implement the PIA processes and requirements in your HR organization.