Employers increasingly turn to mystery shoppers to test how their employees welcome customers and deliver the required services necessary for the proper functioning of their company. Even though this gives the employer an idea as to how its employees carry out their duties, for an employer it is sometimes difficult to know how to react when the results of the control are deemed insufficient for an employee. Since this practice is not regulated, we need to take account of the case-law. On 17 April 2018, the Liege Labour Court was asked to rule on a case of summary dismissal for grave misconduct of an employee following controls conducted by a mystery shopper (Liège Labour Court, Liège Section, 17 April 2018, 2017/AL/174, available on www.juridat.be).

In the case at hand, Ms. B, an employee at a store, was controlled three times by a mystery shopper over a short period of time. Each time those controls resulted in a negative score for Ms B with regard to her performance in terms of sales and interactions with customers.

After the first control, Ms. B received a letter including a report and comments on the control. She then received a written warning with a reminder of the "golden rules" to be followed. Moreover, she was provided with a training one month after the facts. Two months after the first control, Ms. B was controlled again. Just like the first time, she received a detailed warning. Three months later, Ms. B was controlled once again and two days later her employer decided to proceed with a summary dismissal for grave misconduct, following the mystery shopper’s report which was once again negative.

Before labour courts, Ms. B maintained that the mystery shopping hadn’t been neutral and that the allegations against her qualified as incompetence and, hence, could not constitute grave misconduct, since there was no insubordination or conscious desire on her part to not abide by the rules. The employer on the other hand maintained that he had been really transparent about the mystery shopping (it was stated clearly in the work regulations and in an annex to the employment contract) and that the questionnaire which had to be filled out by the mystery shopper dealt with minimum requirements and factual attitudes on behalf of the controlled sales clerks. The Labour Court ruled as follows: it started by emphasizing that both the method used and the proof obtained through these controls needed to comply with the rules on personal data protection. However, since the parties did not elaborate on this question, the Court didn’t rule on this matter. The Court then ruled on the objectivity of such a method since assessments are made based on a score ranging from 1 to 5 and many questions are formulated around a "feeling". The Court then considered that such assessments can’t constitute a summary dismissal for grave misconduct, since the employer is ought to "bring convincing proof that is not unilateral, of negligence stemming from voluntary or malicious behaviour". In the case at hand, the employer demonstrated that she didn’t meet the competency requirements expected from its employees but it didn’t demonstrate that Ms. B deliberately acted wrongly.

As such, the Court clearly stated that negative assessments by mystery shoppers do not justify in themselves a summary dismissal for grave misconduct. The Court also questioned the acceptance of such controls as proof, given their lack of objectivity. For the avoidance of doubt, the Court also pointed out that the use of such a control method shall comply with the rules on data protection.