Newsflash: mystery calls

On 11 January 2018, the Belgian parliament approved a government bill on the so-called "mystery calls".

The mystery calls are provided as an additional enforcement tool for detecting discrimination within companies. In concreto, the mystery calls must only be used as a last option to obtain evidence to be used in a criminal prosecution.

From the first day of the second month after publication of the law in the Belgian Official Gazette (still pending) the Chapter "Provisions for amendments to the Social Criminal Code" will enter into force.

Special competence of labor inspectors:

1. Organization and control

The calls must be made anonymously by the labor inspectors who are entitled to present themselves as a (potential) customer or employee.

Furthermore, such calls may only take place if the following conditions are met cumulatively:

• only after prior approval of the labor prosecutor or the public prosecutor;
• there must be an objective indication of discrimination;
• there must have been a complaint or a report beforehand;
• the acquired evidence must be supported by results from datamining[1] and datamatching[2] (eg. Dimona declaration).

2. Offenses when strictly necessary

The labor inspectors, within the scope of their task, may not commit criminal offenses themselves. However, the labor prosecutor or the Public Prosecutor can provide an explicit agreement to commit a criminal offense if such is strictly necessary in the context of the assignment and the success thereof or to ensure their own safety.

Of course, these offenses must be proportionate to the pursued objective and must not be more serious than the facts for which the investigation method was initiated.

3. Report and Notification obligation

Lastly, all actions undertaken, and the obtained results, by the labor inspectors during the investigation must be incorporated in a report which is communicated to the labor prosecutor or public prosecutor for further action.

 

 

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