Proactive detection of discrimination on the labour market through mystery calls - A recent change in the law lowers the threshold for anonymous practical tests on the labour market

Our HR Beacon, our annual survey of HR trends among our clients, shows that 1 in 5 companies were faced with an informal or formal complaint, mainly based on so-called race. Discrimination in recruitment still seems to be difficult to prove in court. This now seems 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 labour inspection more room to detect discrimination in job applications by means of mystery calls or anonymous practical tests, thus enabling proactive detection of forms of discrimination on the labour market. The change was published in the Belgian State Journal on 28 April 2022 and will enter into force on 8 May 2022.

At the end of March, the House of Representatives passed a bill to amend section 2/1 of the Social Penal Code concerning the special powers of social inspectors in the field of detecting discrimination. The green light was thus given to make anonymous practical tests on the labour market more accessible. The amendment of the special powers of social inspectors allows more use to be made of such practical tests or mystery calls. The social inspection will now be able to act on its own if it possesses objective data.

The provision on mystery calls was included in the Social Penal Code in 2018 as a tool for inspectors in the fight against discrimination. In an anonymous practical test or mystery call, the inspector pretends to be a job applicant in order to ascertain whether the employer’s behaviour can be considered discriminatory or not.

However, practice showed that an effective exercise of that specific power was often not possible. A change in the law was therefore considered necessary to enable the effective application of anonymous practice tests. 

Previously, three conditions had to be met cumulatively before the use of a mystery call was possible:

• there is an objective indication of discrimination 
• that comes to light following a complaint or report
• based on results of data mining and data matching.

Since the combination of the three elements was almost non-existent, it was often impossible to carry out a mystery call. Moreover, the exercise of the special power concerning discrimination could only be used after a written and prior agreement from the labour auditor or the public prosecutor.

This is now being fixed by softening the system. Inspectors will now be able to rely on either objective elements or a substantiated 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 labour auditor or the public prosecutor will still be required. The details of implementation will be determined by Royal Decree.

Action point

In the future, social inspectors will be able to make more use of an anonymous practical test to detect discrimination on the labour market. It is important that employers avoid any discrimination as from the moment that they receive an application to fill a vacancy.