Proof of workplace discrimination: greater powers for inspectors

The Belgian Social Penal Code has recently been amended in order to grant specific powers to labour inspectors to investigate and establish the existence of “discriminatory” infringements.

With what objective?

Unlike for most other infringements under social penal law, it is necessary to prove criminal intent for discrimination-related infringements. However, this is often very difficult, indeed even impossible, in practice.

This is why labour inspectors have now been given “specific powers in the area of discrimination” under the Social Penal Code. Under certain very strict conditions, they are able to approach a company posing as customers (or potential customers) or employees (or potential employees) to verify whether discrimination based on a protected characteristic (age, sex, religious belief, etc.) has been or is being committed, without being obliged to present a proof of identity and inform the company of who they are.

What does this mean in practical terms?

The possibility for labour inspectors to use specific powers in the area of discrimination is subject to strict conditions.

Anti-discrimination laws

The specific powers in the area of discrimination granted to labour inspectors may only be used to verify compliance with three “anti-discrimination” laws (and their implementing decrees) in the area of labour relations.

The three laws in question are:

• Law of 10 May 2007 combating certain forms of discrimination,
• Law of 10 May 2007 combating discrimination between men and women,
• Law of 30 July 1981 suppressing certain acts motivated by racism or xenophobia.

A very specific framework

Labour inspectors have the power, in the presence of objective indications of discrimination, following a complaint or report, supported by the results of data mining and data matching, to pose as customers, potential customers, employees or potential employees, to verify whether discrimination based on a protected characteristic has been or is being committed.

Data mining means searching, on an ad hoc basis, for links in collected data in order to establish profiles for more in-depth searches.

Data matching means comparing the two sets of data collected with each other.

The specific powers in the area of discrimination may only be exercised after obtaining the prior and written authorisation of the Labour Prosecutor or the Public Prosecutor.

They must, moreover:

• be limited to creating an opportunity to highlight a discriminatory practice,
• be exercised where necessary to conduct surveillance in order to observe the circumstances applicable to regular customers, potential customers, employees or potential employees and where such observations cannot be made in any other way,
• not have the effect of creating a discriminatory practice when there was no serious indication of practices that could be characterised as direct or indirect discrimination.

All actions undertaken during the investigation and the results must be recorded in a report and communicated to the Labour Prosecutor or the Public Prosecutor.

Minor infringements

Labour inspectors tasked with exercising specific powers in the area of discrimination are prohibited from committing criminal offences while carrying out their investigation.

However, labour inspectors who, while carrying out their investigation, commit criminal offences that are absolutely necessary (e.g. using a false name) to ensure the success of the investigation or to guarantee their own safety, with the prior express authorisation of the Labour Prosecutor or Public Prosecutor, are exempted from punishment. Any such criminal offences may not be more serious than those for which the investigation is carried out and must be proportionate to the intended objective.

Date of entry into force

The possibility for labour inspectors to use specific powers in the area of discrimination comes into force on 1 April 2018.

Sources: Law of 15 January 2018 containing various provisions in the area of employment, Belgian Official Gazette of 5 February 2018.

Author: Catherine Legardien

15/03/2018