Under Belgium’s Private Investigations Act (the “PIA”), an employer may only investigate its employees if the detailed rules governing such investigations are laid down expressly and transparently in a set of internal regulations. Employers were given a transitional period of two years from the PIA’s entry into force to put these regulations in place. That period ends on 16 December 2026.
In the first two blogs in this series, we set out the scope of the PIA and how an investigation under the PIA must be conducted. In this third and final blog, we look at which employers must adopt regulations, the form these may take, what they should cover and the consequences of non-compliance. We also address the recently started political talks on possible amendments to the PIA, which, for now, do not affect the deadline.
Which employers need regulations?
Regulations are required as soon as private investigation activities are carried out on behalf of an employer in respect of its employees. The size of the business, the number of employees and the frequency of investigations are irrelevant.
It also makes no difference whether the investigation is conducted by the employer’s own internal investigation service or is outsourced. An employer that instructs an external investigation firm still needs compliant regulations, and the firm must decline the assignment if there are none.
Why regulations are required
The purpose of this requirement is transparency: employees must know in advance that investigations may take place in the workplace, and on what terms. Employers will therefore need to develop a genuine policy on workplace investigations. A single reference in a privacy notice will not suffice.
Form of the regulations
The PIA does not prescribe the form the regulations must take. In our view, a policy is the best format, as it can be drawn up, implemented and amended flexibly.
While the PIA does not require formal agreement of the employee representative bodies, information and consultation through the usual channels of social dialogue is strongly recommended. This will significantly strengthen the employer’s position if the policy is ever challenged.
What should the regulations cover?
The PIA offers little guidance on the content of the regulations. Robust regulations should however address at least the following six topics:
- The circumstances under which an investigation may be opened
- Who conducts any investigations: the internal investigation service or also external investigators or counsel?
- How investigations are conducted – the main phases of the process
- Which investigative measures may be used
- Possible outcomes of an investigation
- Employees’ rights during and after the investigation
Consequences of non-compliance
Evidence gathered in a private investigation conducted after 16 December 2026 without regulations in place risks being considered unlawful and disregarded by the courts. The requirement to adopt regulations is one of the provisions of the PIA prescribed on pain of nullity.
Having compliant regulations in place is not sufficient in itself. In the event of a dispute, employers will need to prove that the employee concerned was actually and adequately informed of them.
Possible amendments to the PIA?
In recent weeks, there has been considerable speculation about possible changes to the PIA, in particular as to its scope. Discussions on possible amendments have now started at a political level, including on solutions to the practical difficulties that employers have encountered since the PIA entered into force.
However, it is too early to anticipate the content of any amending legislation. For now, the PIA continues to apply in its current form and the deadline of 16 December 2026 remains unchanged. We will, however, continue to monitor developments and provide updates as appropriate.
This concludes our three-part series on the PIA. In the first blog, we set out the scope of the PIA and the licensing requirements that may apply to internal investigation functions. In the second, we looked at how an investigation under the PIA must be conducted.
To discuss how the Belgian Private Investigations Act may affect your operations and how we can assist your business, please reach out to Marga Caproni, Partner and head of the Belgian Labour & Employment practice.
