Belgium: labour inspectors will be able to more easily use ‘mystery calls’ to test for discrimination in hiring

An amendment to Belgium’s Social Penal Code, which was adopted by the House of Representatives on 31 March and came into force on 08 May, extends the labour inspectorate’s powers for detecting discrimination in hiring. Going forward, inspectors can more easily test for discrimination using ‘mystery calls’ (aka anonymous practical tests), where an inspector pretends to be a job applicant in order to ascertain whether or not the employer’s behaviour can be considered discriminatory. Until now, three conditions all had to be met before a ‘mystery call’ could be authorised, namely (i) an objective indication of discrimination, (ii) discrimination that comes to light following a complaint or report, and (iii) discrimination that is based on the results of data mining and data matching. In reality, these three conditions were almost never all met, which often made ‘mystery calls’ impossible to carry out. A prior written agreement from the labour auditor or the public prosecutor was also required. The amendment, which was published on 28 April 2022 in the Belgian State Journal means that as of 08 May only one of the three conditions needs to be met. Thus labour inspectors will be able to rely either on objective elements, or on a complaint, or on data from datamining and matching. Although the conditions for the use of ‘mystery calls’ are now more flexible, prior written approval of the labour auditor or the public prosecutor is still required. Details of implementation will be established by Royal Decree.