Newsletter 2026 – 01

1 Office news

2 Jurisprudence – the private investigator must color within the lines

Antwerp Labor Court, Antwerp division, December 26, 2025

An initial appeal ruling on an investigation subject to the Private Investigations Act

The facts. Mr. L. is employed as a technician by NV C., which builds – naturally at various construction sites – infrastructure for telecommunications and energy. As a union representative and member of the works council, he is exempt from performing work. The NV used an IT system called “Service Cruiser” in which employees, including L., enter their work performance and travel. For his trips from home to the first workstation and from the last workstation back home, the NV grants a mileage allowance calculated based on the address details that L. himself enters into the system.

Because the company had had serious doubts about L.'s records for some time and observed inconsistencies, it commissioned a private investigator to investigate. The investigator determined that L. was indeed falsifying his records of work performance and travel, and not by a small amount. (One example from the – incomplete – investigation report: on May 13, 2025, L. noted that he was on-site in Peutie at 8:23 a.m., even though he had been off work all day and had stayed home.) After reviewing the investigation report, the company interviewed Mr. L. on August 21 about the alleged offenses. On August 22, 2025, the company then filed a request with the presiding judge of the labor court for recognition of an urgent cause (see Act of March 19, 1991, Employee Representatives Dismissal Regulations Act).

The verdict. The Antwerp Labor Court, Mechelen Division, rejected the request for recognition of the urgent reason in its judgment of October 28, 2025. The court declared the private investigator's report null and void (see below) and determined that the urgent reason was not proven.

The judgment. The labor court does recognize the facts presented as compelling grounds for dismissal.

Firstly, the court upholds the labor court's judgment. It also declares the investigation and the private investigator's report null and void. The law of 18 May

The 2024 Act regulating private investigation (WPO) – which, as is now well known, also applies to employer-employee relationships – specifically regulates observation (see Article 87 et seq.). Article 90 stipulates that the observation of a person "during the same assignment or successive assignments for the same client and the same purpose" must last less than four consecutive or non-consecutive days, spread over one month. The court infers from this text "that non-consecutive days of observation by a private investigator may, in principle, not exceed one month." The private investigator had carried out seven observations between May 9 and July 7, 2025. In doing so, he also violated Article 81, which reserves the observation method used for the police and other government services. Pursuant to Article 101, paragraph 4, WPO, the investigation and the investigation report are null and void.

Unlike the labor tribunal (and based on additional evidence?), the court of appeal finds the facts proven, albeit in a different way and without the invalid investigation report. The company demonstrated that L. had entered fictitious addresses into Service Cruiser several times during 2025. The court finds that L. had already been very clearly and unambiguously reprimanded in emails during 2024 and 2025 regarding his handling of data entry in Service Cruiser. He had been repeatedly given strict instructions. The court finds the facts, namely false registrations and insubordination, proven and recognizes them as compelling reasons.

The judgment also contains some other interesting considerations.

• The three-day period did not start running until August 21, the date of L.'s hearing, regardless of whether this hearing yielded additional information.
• The earlier facts – insofar as they are included in the registered letters of 22 August 2025 – can indeed be taken into account for the assessment of the urgent reason, provided that the company proves one or more facts of an incorrect nature of which it became aware within a period of three or less than three working days prior to the intention to dismiss.
• Pursuant to Article 8.4 of the Dutch Civil Code, all parties, including the employee, are obligated to cooperate in the presentation of evidence: "The finding that the private investigator's report constitutes unlawful evidence does not release Mr. L. from his obligation to contribute to the clarification of the dispute to the best of his ability. He may be required to provide reasons regarding the facts about which he can and therefore must provide clarification."
• Article 11, Section 1 of the Employee Representatives Dismissal Regulations Act stipulates: “The complete file of the appellant must be filed with the registry within three working days of dispatch of the petition.”

The first president of the labor court, in its order of November 17, 2025, set the deadlines for filing briefs and did not provide for the possibility of submitting documents outside the aforementioned three-business-day period. The company only submitted two documents together with its appeal. The court will not grant L.'s request to exclude these documents from the hearing. Article 747 of the Judicial Code is not applicable given the deviating provision in the aforementioned Article 11, Section 1, of the Employee Representatives Dismissal Regulations Act. This latter provision is not prescribed under penalty of nullity and does not contain any other sanction. The – late – submission of documents is also not disloyal, as L. was still able to defend himself in his final statement.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be