Using ‘mystery calls’ to detect discrimination in recruitment in Belgium

A recent change in the law in Belgium lowers the threshold for labor inspectors to use ‘mystery calls’ to test for discrimination in recruitment.

Our annual survey of HR trends showed that one in five companies have been faced with an informal or formal discrimination complaint, mainly on the grounds of apparent race or ethnic origin. Discrimination in recruitment still seems to be difficult to prove in court, but this now appears to be changing.

On 31 March 2022, the House of Representatives passed a bill amending the Social Penal Code in order to introduce an additional competence for social inspectors. The purpose of the amendment is to give the labor inspection more scope to detect discrimination in job applications by using ‘mystery calls’. This enables proactive detection of forms of discrimination on the labor market. The change was published in the Belgian State Journal on 28 April 2022 and entered into force on 8 May 2022.

In a mystery call (also known as an ‘anonymous practical test’), the inspector pretends to be a job applicant to ascertain whether the employer’s behavior can be considered discriminatory or not. The provision on mystery calls was included in the Social Penal Code in 2018 as a tool for inspectors in the fight against discrimination. At the end of March, the House of Representatives passed a bill to amend the Social Penal Code (section 2/1 o) expanding social inspectors the special powers for detecting discrimination. The amendment allows social inspectors to make more use of mystery calls. Now, the social inspection will be able to use mystery calls on its own initiative if it has objective data.

Previously, three conditions had to be met cumulatively before inspectors could make a mystery call:

  • There is an objective indication of discrimination;
  • That comes to light following a complaint or report;
  • Based on the results of data mining and data matching.

In practice, these three elements were almost never present, meaning it was often impossible to carry out a mystery call. Moreover, the special power could only be used with written and prior agreement from the labor auditor or the public prosecutor.

This is now being fixed by relaxing the system to enable the effective use of mystery calls. Inspectors will now be able to rely on either objective elements, or a complaint, or data from data mining and matching. A combination of these three conditions will therefore no longer be required. However, the prior written approval of the labor auditor or the public prosecutor will still be needed. The details of implementation will be established by Royal Decree.

This article was written by our colleagues from Claeys & Engels, the Belgian Ius Laboris law firm.

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