Internal investigations in the spotlight

Legal news in the field of internal investigations have recently been hectic. On 23 April 2024, the Supreme Court handed down an important ruling regarding the right of employees to be assisted by a lawyer during interviews conducted as part of an internal investigation. Just over two weeks later, on 8 May 2024, the Federal Parliament adopted a new law governing private investigations conducted by external investigators or in-house investigation services.

The key points of these two developments are outlined below:

Supreme Court ruling on employees’ rights to access a lawyer during internal investigations

In its decision of 23 April 2024, the Supreme Court ruled that internal investigations are not equivalent to public inquiries led by prosecutors. Consequently, the Court determined that the guarantee of access to a lawyer, as provided for by Article 6 of the European Convention on Human Rights (ECHR), does not apply to internal investigations conducted by a private company.

Legislative changes affecting internal investigations

Shortly following this decision, on 8 May 2024, the Federal Parliament enacted a law addressing the conduct of private investigations when carried out by external investigators or in-house services (the “Law”). The key provisions and their potential impact in practice are as follows: 

• Legal Assistance: Contrary to the Supreme Court’s ruling, the Law allows employees the option to be assisted by a person of their choice during interviews conducted as part of internal investigations falling under the scope of the law. This means that they could also opt for legal representation, and the investigator could not deny this right.

Currently, it is rather rare in practice that employees under investigation request legal representation. Generally, the employer will allow the employee to be assisted by a trade union delegate or another colleague during the interview. If legal representation becomes more common going forward, it might open other discussions such as whether the employer/investigator should indemnify the employee for its legal costs incurred as part of the investigation.

• Policy: Employers are now required to have a clear, written policy outlining the authorization and conditions for conducting private research. Such written policy may be included in the company’s work regulations or in a collective labour agreement. A grace period of two years has been established for employers to align with this requirement.

Today, processes for conducting investigations are often scarcely set out in different documents, often a mix between a whistleblowing policy, the company’s work rules and some global grievance policy. The lack of detailed procedure can sometimes complicate the investigation process, given responsibilities and powers have not been thought through ahead. Although the requirement to have a detailed procedure might initially seem like a burden, it could also be an opportunity to set out the blueprint for the investigations process, and therefore easing it in practice. 

• Mission Statement: Before initiating an internal investigation, a detailed written mission statement must be prepared, describing the scope and purpose of the investigation.

This requirement resembles a lot "terms of reference” we often prepare for companies when conducting complex investigations, which help ensure that the investigation is focused, efficient, and conducted in a fair and consistent manner. 

• Legal validity of the internal report: Judges reviewing the outcomes of private investigations are tasked with ensuring compliance with the new law. They hold discretion over the evidentiary value of the investigation findings but must adhere to specific nullity provisions, such as the nullity in case of non-compliance by the employer with the duty of having a clear, written policy outlining the conditions for conducting private research.

Next steps and practical considerations 

The Law will need to be published in the Belgian State Gazette and will come into force 10 days after its publication, yet most requirements will not impact companies immediately given the transitional provisions. 

The scope of the Law is also rather unique and will not target all private investigations. However, regardless of whether the provisions apply, the Law will surely impact the legal landscape of internal investigations. Amongst others, it is likely that case law will be inspired by the provisions of the Law and regard those as the ‘blueprint’ for conducting fair internal investigations, for example when judging over the probationary value of an investigation report (e.g. where the investigation findings led to dismissal for serious cause, which is later being disputed). Employers should thus take note of the new provisions, which we will analyse in further detail in a more comprehensive analysis.