The legal reforms amend the social criminal code by allowing social inspectors to act as mystery shoppers in the context of the three anti-discrimination laws.
This amendment was made following the observation that in criminal matters it is difficult to prove discriminatory behaviour, as opposed to civil law where the reversal of the burden of proof principle holds.
The new provisions aim to provide social inspectors with specific powers in terms of researching and establishing discriminatory offences in order to make it easier to prove that these offences were committed. How? By using the mystery shopping technique (showing up without having to introduce themselves or prove their identity) in order to examine a certain practice within the same industry or practices at a specific employer. If the technique leads to the conclusion that there are indications of questionable practices going on or of a violation made, the inspector will have a basic element allowing him to implement a more general action or more targeted measures, or even to make a report.
The implementation of such a system, however, requires implementation of a number of safeguards, i.e.:
- The social inspection services can only use the mystery shopping system in the context of the three anti-discrimination laws
- Prior written approval of the Judge Advocate for Labour or of the public prosecutor is required in order to use this technique
- Using this technique is only allowed following complaints or reports and based on indications of discrimination This system can only be used if it is required for the exercise of supervision in order to establish the circumstances that apply to regular/potential clients, employees or potential employees and if they cannot be established otherwise
- There cannot be any "provocation" in the meaning of the code of criminal procedure
The social inspector who is authorised to use the mystery shopping system does not need to introduce himself (he does not need to show his ID/nor his capacity) if the system is used in order to research and establish violations with regard to anti-discrimination legislation.
Moreover, if the social inspector commits punishable acts that are absolutely necessary in the context of this mission (subject to prior explicit approval of the Judge Advocate for Labour and of the public prosecutor), he will not be prosecuted as long as these punishable acts are less serious than the ones researched through the mystery shopping method.
The legal reforms discussed in this publication are not definitively approved by Parliament yet, and may be subject to change.