Employers are forbidden by law, or restricted by collective bargaining agreements, from asking certain questions of applicants or requiring them to undergo certain tests. The purpose of background checks must be to assess the applicant’s ability to perform the job.
As a rule, an employer can only ask questions to an applicant that are genuinely relevant, taking into consideration the nature and working conditions of the job offered (such as diplomas, previous jobs, etc.).
The applicant has the right not to answer questions that are not relevant for the job or violate privacy and anti-discrimination laws. However, it is worth noting that applicants have an obligation to cooperate in good faith during the selection process. An applicant is not only bound to answer the employer’s relevant questions, but should also spontaneously provide the employer with all relevant information that he/she might be expected to know, and which would be important to the employer. In case an applicant provides false information, the employment contract could be terminated for serious cause based on error or deceit. However, this is only the case when the false information is relevant to the application procedure (for example, the applicant does not have the required diplomas or hides medical information that could endanger himself or a co-worker).
Extended background checks on employees are not common in Belgium. They should be limited to the strict necessity of assessing the applicant’s professional skills relevant to the job offered. The most common background checks relate to education and past employment records and, in relation to employment with an international dimension, confirmation that the applicant has the appropriate permission to work in Belgium.
An employer is permitted to ask the applicant questions about his/her educational background that are genuinely relevant to the nature and working conditions of the job. In such a framework, an employer may therefore require the applicant to produce copies of academic certificates.
An employer is also permitted to ask the applicant questions about his/her prior employment that is job-relevant.
As a general rule, the employer may not ask questions about an applicant’s credit and financial background.
An employer can undertake social media/internet checks, if the general rules are complied with (i.e. no discrimination, in line with the Data Protection Act, and genuinely relevant for the job). For instance, the use by an employer of information on LinkedIn should in principle not raise any issues as this social network is exclusively dedicated to business and professional relations and one of its aims is to be identified by employers. The use of information posted on Facebook, on the other hand, can be more problematic as it may cover the private sphere.
When the information gathered through background checks is used in a discriminatory way, compensation is due on a flat rate basis (six months’ gross wages) or the employee can claim, from the potential employer, an indemnity for the actual damage suffered. Privacy legislation imposes fines of up to 100,000 EUR for employers who violate its provisions.