New regulations permit theft control of employees

From January 2007, Belgian employers are entitled to screen people for theft on leaving the company’s premises. This followed consensus among the social partners on 18 October 2006; their recommendations formed a new intersectoral agreement, which was subsequently transposed into law.

Background

Prior to the recent introduction of new theft control measures for employees, controls were regulated by the Minister of Internal Affairs under the Law on Private Security (Wet op de private en bijzondere veiligheid/Loi réglementant la sécurité privée et particulière) of 10 December 1990. Controls were only allowed for a defined list of goods or activities, namely those incorporating a public safety risk.

For a long time, employers have been asking for greater opportunities to implement theft control measures at work. In 2004, the Deputy Prime Minister and Minister of Internal Affairs, Patrick Dewael, decided to revise the Law on private security in response to such demands. Mr Dewael wanted to permit private security agents to conduct a body search of employees when leaving the company’s premises. However, the trade unions saw this as a serious breach of employees’ privacy rights. As a result, a consultation process was set up in an attempt to reach consensus on the matter. On 18 October 2006, the National Labour Council (Nationale Arbeidsraad/Conseil National de Travail, NAR/CNT) finalised a set of recommendations (advies/avis n° 1571 (137Kb PDF)) in relation to this issue. The council also concluded a new national intersectoral agreement which defines the conditions and methods of organising the ‘exit’ controls of employees. In accordance with the agreement, the Law on private security was also revised in December 2006.

Measures protecting privacy

From 1 January 2007, dedicated company security agents, but not employers themselves, are allowed to perform random controls for theft of anybody leaving the company grounds, including employees and anyone else who has entered the company’s premises, such as self-employed persons, sub-contractors, service personnel and suppliers. Security agents are only allowed to carry out a control with the prior consent of the individual. Besides these random controls, they are also permitted to check an individual worker on the basis of a serious suspicion of theft.

However, such controls are bound by the following rules and conditions:

• body searches are not allowed; this type of control can only be carried out by a police officer;

• employers have to clearly outline what they define as theft;

• theft checks are only permitted to prevent theft or to catch somebody in the act of stealing, not as a measure of job performance or to control attendance;

• systematic controls are only allowed when using an electronic detection system;

• the controls must form part of an overall theft prevention plan;

• controls have to be reasonable and transparent, whereby the method which causes the lowest breach of employee privacy rights has to be chosen;

• a company employee suspected of theft has to first give their consent before being screened by private security agents;

• in the event of actual theft, the control measures must always be conducted with discretion and be declared in writing to the employer, a copy of which must also be sent to the employee concerned.

Preliminary information and consultation

From an industrial relations perspective, an important measure is the stipulation that checks can only take place after the employer has informed and consulted the employee representatives – that is, the works council, the committee for prevention and protection at work, or the trade union delegation – about the foreseen control system. Moreover, the formal working regulations must explain and describe the control system, containing the following points: the perimeter of the company’s premises; a list of potential theft risks; the measures aimed at preventing theft; and an explanation of the control method used. In small enterprises with no employee representation, changes to the working regulations must be communicated to the workers, who can subsequently give their opinion and make suggestions on the proposed changes.

Exit controls that are performed without the proper information requirements, as stipulated under the regulations, are defined by the collective agreement as a non-legal act in accordance with the revised Law on Private Security. Non-compliance with these regulations can be penalised through a variety of measures, ranging from administrative fines to criminal prosecution. Moreover, the private security companies involved could lose their official licence.

Commentary

The new theft control measures outlined represent a precarious balance between the potential need for such controls on the part of the employer and employees’ right to privacy in the workplace. This balance between control and privacy was also the subject of a recent collective dispute over the installation of security cameras on the factory floor of the metalwork company Strong Trailers At Your Service (STAS). The STAS conflict (BE0610069I) revealed certain shortcomings in the Belgian regulations, such as the required workers’ consent to the installation of surveillance equipment or theft control measures in the workplace, which are addressed by the NAR/CNT’s recommendations and the new intersectoral agreement.

Guy Van Gyes, Higher Institute for Labour Studies (HIVA), Catholic University of Leuven