For employers, considering the use of a private detective can, in certain very specific situations, represent one of several means of verification to gather the necessary information, particularly when there are strong suspicions of serious misconduct or competitive activity.
The legislator recently decided to provide a better framework for the practice of this fully-fledged profession. In the future, the use of private detectives will be subject to even stricter rules. What will employers need to pay attention to under this reform?
Obligation to inform employees
Employers must inform their employees of the identity of the data controller, as well as the nature, objectives and purposes of the investigation and data collection by the private detective. They should also provide information on the procedure for deleting data collected during investigations.
These steps may be part of those to be taken by the employer to comply with the GDPR.
A written and signed investigation document and prior adoption of a ‘regulation’
For each assignment, a written investigation document must be drawn up in advance and signed by the employer and the private detective.
In addition, a private detective will only be able to accept an assignment involving an employee if the authorisation to carry out the research and the investigation procedures have been set out explicitly and transparently in a ‘regulation’.
Even though the law does not explicitly refer to ‘work regulations’, we feel that it would be more appropriate to formalise this authorisation and the investigation procedures in an annex to the latter, which should then be amended and brought to the attention of the employees in accordance with the law.
It is vital to respect this formality because, in the absence of ‘ regulations ’, any evidence gathered will be considered invalid and cannot be presented before the courts and tribunals. In addition, administrative fines may be imposed, as for any breach of this new legislation.
Compliance deadline
In order to allow the parties to adapt to these new obligations, the transitional provisions of the law provide for a period of two years from the entry into force of the law.
Conclusion: a more strict framework to protect employees' rights?
This new legislation strengthens transparency and employees' rights by strictly regulating the use of private detectives. Although the date of entry into force has not been set yet, it marks an important turning point in the framework for private investigations.
Faced with these increasingly strict regulations and greater demands for transparency, employers confronted with exceptional situations are likely to question the relevance of continuing to call on private detectives when other possibilities for gathering evidence are available to them, in particular through the services offered by bailiffs.
Vincent MARCELLE end Zazie PIROTTE, Lawyers at MOSAL
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