Whistleblower series: Belgium
In Belgium, the laws surrounding internal investigations are not conclusive, and Belgian companies planning to draw up procedures for in-house inquiries are urged to consider both regulations and case law. Belgian legal theory may be clear, but companies must consider the practical world of court precedent when developing policies.
In short, developing internal investigation and whistleblower policies within a Belgian company centres around this question: if you suspect that an employee is guilty of corruption (e.g. sharing information with competitors, falsifying a timesheet), what can your company do to investigate and if necessary issue corrective measures that are an appropriate response and consistent with Belgian regulations and case law?
Below is a high-level summary of the most important legal principles that could apply in case of an internal HR investigation, and our general recommendations:
First of all, it must be remembered that no laws exist in Belgium that oblige companies to establish a whistleblowing or internal compliance programme. Establishing such policies, however, is recommended to combat internal wrongdoing and to allow a company to respond to any corrupt activities that might be taking place among its ranks.
A good first step for any company implementing its own whistleblowing procedures is to create an Internal Compliance Programme. In addition to appointing a manager to implement this programme, internal compliance should also include the drafting of clear guidelines that set down the company’s policies and defines both acceptable and unacceptable behaviour.
The employer must ensure that all employees are aware of these guidelines by, for example, asking personnel to sign a copy of these policies.
To assist in employee education and to create a positive corporate culture, businesses are also encouraged to conduct regular trainings on good conduct in the workplace and the consequences of non-compliance. To ensure that the legal ramifications of these issues are clear to all, it may be advisable to have either an in-house counsel or an outside lawyer participate in the trainings.
Setting up whistleblowing procedures in a company is complicated by the fact that no legal framework for this exists in Belgium other than the 2019 EU Whistleblowing Directive. This legal vacuum, however, does give businesses the freedom to choose the policies (e.g. should reports be filed anonymously? will the company offer immunity in exchange for cooperation?) that management considers most efficient.
Particular attention should be paid to the following two points:
- all internal investigation procedures must comply with data-privacy regulations as set down by Belgian law and the EU’s GDPR;
- companies cannot enact policies claiming to immunise whistleblowers from dismissal.
According to Belgian law, companies are not obliged to inform either whistleblowers or employees about an investigation nor are they required to alert works councils or representative bodies. Nonetheless, specific information obligations regarding the employees could arise depending upon the investigative measures (see below).
Generally, we advise that all internal investigations include employee interviews in the appropriate official language (Dutch or French depending upon the place of work). It is recommended that minutes be taken of each interview, which the employee should be asked to review and sign. Furthermore, companies are advised to allow employees to seek the support of union representatives during the interview process. Having lawyers present during interviews is not always advisable since some employees might view this as intimidation.
In principle, interviews cannot be recorded in audio or visual form unless the employee gives his explicit permission. In addition, companies are advised to seek the approval of employees before searching their workstations (e.g. offices, desks, company vehicles) since these areas may contain personal articles that would fall under either data-protection or Belgian privacy laws. When asking permission to conduct a search, the company should specify a clear goal, detailing what it is looking for and why.
When searching laptops and mobile phones, a raft of Belgian regulations and case law apply, such as CBA 81, Electronic Communications Act and Article 314bis of the Criminal Code. Given the legal sensitivity of these searches, we advise that companies strictly comply with rules contained in the regulations described above.
In terms of other investigation techniques, surveillance cameras can be used in the work place. Again, strict formalities apply for camera surveillance to be legal. For example, in line with labour and data-protection regulations, employees should, among other details, be informed of their presence, and the cameras should not be placed in areas like employee lunchrooms where work is not conducted.
Companies should indeed protect themselves from the possibility of having the results of their internal probe overturned later in the courts.
Yet even if mistakes were made in an internal investigation and evidence was collected contrary to regulations, all is not necessarily lost. According to the “Antigoon” precedent in case law, illegally obtained evidence may be accepted in court if it doesn’t obstruct the rights of the accused to a fair trial, if the evidence is reliable, and if there is no violation of a formal requirement sanctioned with nullity.
As for employee rights, are workers entitled to withhold cooperation in an internal investigation? Here a fine balance must be struck. According to Belgian law, employees have a “loyalty obligation” that could serve as a basis for employers to request collaboration. However, employees as citizens have the right to reject any request that may lead to self-incrimination.
Generally speaking, employers can request the cooperation of their workers so long as their investigation procedures are not invasive and respect employee rights.
Since former workers are not bound by Belgian law to cooperate with internal investigations, employers could consider including a post-employment cooperation obligation in all employee contracts.
When an investigation has been concluded, Belgian companies have various options at their disposal for meting out sanctions. For relatively minor infractions, companies could consider giving workers oral warnings, written warnings or fines (sanctions to be included in the work rules of the company and to be imposed on the first working day following the infringement or the conclusion of the investigation).
For more serious offences, a termination of the employment contract can be considered. Termination can come after a notice period has been performed or with immediate effect in which a cash payment compensates for the absence of notice.
In cases of termination, employers are not obliged by law to consider a rebuttal argument from an employee, although giving the employee a forum to respond is recommended as protection against any subsequent court action.
In more complex situations, employers can try to reach termination settlements.
In case of serious misconduct such as theft, fraud or corporate espionage, companies can terminate an employee immediately, as stated in Article 35 on the Belgian law overseeing employment contracts.
In this case, termination must take place within a three-workday period following the date on which the company has sufficient knowledge of the facts, and in instances of fraud or serious negligence, the fired employee may be liable for damages.
In conclusion, in order to ensure its protection in case of employee misconduct, a company is advised to implement appropriate measures and to act sooner rather than later.
Katrien Leijnen, Senior Associate, Brussels
Géraldine Lemaire, Senior Associate, Brussels
