The Supreme Court clarifies... but is already overruled by recent legislative changes?
Although employers have been proceeding with internal investigations for decades, nowadays they raise more and more legal questions. Driven by legislative initiatives (e.g. whistleblowing legislation) and case law trends, there are many situations in which an employer may be forced to an internal investigation. The most frequently applied investigation measure employers rely on is undoubtedly the employee interview. Proceeding with an employee interview raises several legal and practical questions. In its decision of 23 April 2024 the Supreme Court answers one of them... In the meantime, the Act on Private Investigation was adopted and overrules, at least in some scenarios, the Supreme Court decision.
1. The right to access to a lawyer during an internal investigation
1.1 Supreme court: no right to access to a lawyer
In a recent court judgement1, the Belgian Supreme Court ruled that it is not required for an individual to have access to a lawyer during an internal/ private investigation. The observation that an individual was refused to be assisted by a lawyer does not constitute a violation of Article 6 ECHR. Article 6 ECHR is not applicable when an investigation team of a private company proceeds with an internal investigation, even when the investigation focuses on possible criminal offences. Such right is only guaranteed in case of a criminal prosecution, conducted by the competent investigation and prosecution bodies.
1.2 New act on private investigation: the right to be assisted during an interview
The recently adopted Act on Private Investigation2 which includes abolishing the Act of 19 July 1991 on the profession of private detective) overrules the Supreme Court's decision, at least in certain circumstances.
Amongst other things, the Act on Private Investigation provides for quality and reliability requirements when a "private investigator" proceeds with certain investigation measures, such as an "interview". For example, the Act provides that the interviewer must communicate to the interviewee, prior to the start of the interview, that the interviewee has the right to be assisted by a person of his own choice during the interview.
Based on this provision, an individual who is being interviewed in the framework of a private investigation is entitled to be assisted by a lawyer during the interview, and this whether or not the purpose of the interview is to investigate an alleged crime.
2. Do these principles also/ equally apply in an employer-employee context?
The answer is nuanced. Different scenarios may occur.
When an employer conducts an internal investigation and it calls upon an external investigator the employee may be assisted by a lawyer during an interview, if desired so. The same applies when the investigation is conducted by the employer's internal investigation department (i.e. a well-established in-house investigation team). If this is not the case and the employer only occasionally proceeds with an internal investigation himself, then the Act on Private Investigations does not apply, resulting in the employee not having an enforceable right to be assisted by a lawyer during an interview.
Even in a scenario where an employee does not have an absolute right to be assisted by a lawyer, the question remains whether such employee can ask an employer to be assisted by a trade union delegate (i.e. a member of the internal trade union delegation) or an external trade union representative (i.e. a secretary of a union). CBA n° 5 on the status of the trade union representatives only provides for a general right to be assisted by a trade union delegate if the employee himself filed a complaint. One cannot derive an automatic right thereof to be assisted by a trade union delegate when being interviewed by the employer, either as a witness or as a suspect. But it may be worth checking whether a broader competence is attributed to the trade union delegation in a sector CBA or in a company arrangement. In any event, there is no legal basis providing for a guaranteed right to be assisted by an external trade union representative during an interview.
3. To end with: some practical considerations
Although legally not required, it may be that case law, inspired by the legal principles set out in the new Act on Private Investigation, will evolve towards a position that refusing an employee to be assisted by a lawyer or a trade union delegate affects the credibility and reliability of interview notes (e.g. to demonstrate elements justifying a dismissal for serious cause), especially when an employee requested for such assistance. The position of a court could be strengthened by other factual circumstances accompanying the interview, such as the observation that the employee was not given a copy of the meeting notes, the impossibility for the employee to review and to correct, if necessary, the meeting notes, etc.
Therefore, and as a take away, when an employer proceeds with an interview (and the Act on Private Investigation is not applicable) the employer does not have the obligation to communicate to the employee that he/she can be assisted by a lawyer or a trade union delegate. However, if the employee raises such question, and depending on the concrete circumstances of the case, it may be perceived as unreasonable to refuse such request.
Footnotes
1. Supreme Court 23 April 2024, P.23.1632.N/1
2. At the moment of publication, the Act on Private Investigation did not yet enter into effect.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.