Investigations of a private detective as a means of proof

As a result of the rules on the protection against dismissal, an employer may be prevented from dismissing an employee based on the submission of several sickness certificates.

When employers suspect that an employee’s illness is fictitious, what can they do in order to remove the protection their employee enjoys from and regain the right to dismissal?

One possibility is for the employer to ask the employee to undergo, during the period of illness, medical counter-visits by doctors appointed by the employer. A single medical opinion contrary to that established by the employee's doctor is however not sufficient. In order to validly question the employee's sickness certificate and to conclude that there is no illness, the employer must in fact have two opinions contrary to that established by the employee's doctor.

This appointment of several medical professionals can be burdensome and difficult when the employee lives far away and/or the sickness leaves are short-term.

In such cases, the employer has the possibility to use the services of a private detective whose mission report or testimonial statement will serve as evidence of the fictitious nature of the employer's illness.

Labour courts admit this evidence as perfectly lawful, as long as the invasion of privacy is justified by the requirement of the protection of other interests, including the rights of the defence (in this case, the employer's), and that the harm remains proportionate to the aim pursued (in this case, to prove the absence of real illness).

In a recent case, an employer used a surveillance company to track the movements of the employee from his home for a period of two weeks. In this particular case, the Labour Court sanctioned the disproportionate infringement to the rights to privacy, by dismissing the detective's mission report, which could not be taken into account to establish the absence of illness.

In two other cases, the judge considered that the observations made by a private detective for a week, in public areas, were justified by the requirements of serious proof to be reported by the employer. Similarly, in a case dated 9 October 2017, the judge admitted the detective's report as evidence, after noting that the detective's findings were limited to two ad hoc observations in a dance hall.

The employer thus has the means to establish the fictitious character of the illness of the employee and thereby recover the right to dismissal which was temporarily suspended. However, it will be up to the employer to assess, in each case, based on the circumstances, whether the evidence collected is valid and sufficient, not only to defeat the protection against dismissal, but also to justify the dismissal.

Did you know?

On the basis of reports of private detectives, judges considered, for example, that repeated attendance to the gym, restaurants or shopping centres, constitute faulty behaviour of the employee during his illness leave and justifies a dismissal. Similarly, giving two paid dance classes during a period of illness leave or going abroad to participate in a recreational activity, and then sharing photos on Facebook, was a breach of the employee’s duty of loyalty towards the employer.