Using “mystery calls” to detect discrimination in recruitment – Discrimination, disability and sexual harassment

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A recent law change in Belgium lowers the threshold for labor inspectors to use “mystery calls” to test for discrimination in hiring.

Our annual HR Trends Survey has shown that one in five companies have faced an informal or formal complaint of discrimination, primarily based on apparent race or ethnicity. Discrimination in recruitment always seems difficult to prove in court, but that now seems to be changing.

On March 31, 2022, the House of Representatives passed a bill amending the Social Penal Code to introduce additional jurisdiction for social inspectors. The aim of the amendment is to give the labor inspectorate more leeway to detect discrimination in job applications by using “mystery calls”. This enables proactive detection of forms of discrimination in the labor market. The amendment was published in the Belgian Official Gazette on April 28, 2022 and entered into force on May 8, 2022.

During a mystery call (also known as an “anonymous practical test”), the inspector poses as a job seeker to determine 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 adopted a bill amending the Social Penal Code (article 2/1 o) extending special powers to detect discrimination to social inspectors. The amendment allows social inspectors to make more use of mystery calls. From now on, the social inspectorate 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;

  • This 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 all present, often making it impossible to make a mystery call. In addition, the special power can only be used with the prior written agreement of the labor auditor or the public prosecutor.

This issue is now resolved by making the system more flexible to allow for the effective use of mystery calls. Inspectors will now be able to rely either on objective elements, or on a complaint, or on data from datamining and matching. A combination of these three conditions will therefore no longer be necessary. However, the prior written approval of the labor auditor or the public prosecutor will always be necessary. The terms of execution will be set by royal decree.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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