On March 6, 2018, the headline in Algemeen Dagblad read: “Confidential counselors for #metoo victims thwarted by employers”. This article led to parliamentary questions to the State Secretary for Social Affairs and Employment about the position of confidential counselors within organizations and the state of affairs regarding a safe and healthy working environment. The subject is currently under a magnifying glass and is extremely sensitive. How can you as an employer take responsibility regarding this subject?
Mr. Tjeerd Hoekstra
CMS
The law states that the employer must exercise due care to protect his employees from damage. This principle is further elaborated in the Working Conditions Act ("Arbowet"), in which the employer is obliged to protect his employees against psychosocial work strain. This concept is broadly formulated, but in any case includes situations involving work pressure, bullying, sexual harassment, discrimination, aggression and violence that can cause stress. The employer is legally obliged - under penalty of an administrative fine - to draw up a policy to prevent psychosocial work strain. The Working Conditions Act does not prescribe any mandatory measures that the employer must take when drawing up such a policy. What plays a role in this and what is important? The policy must contain preventive measures on the one hand and repressive measures on the other. An example of preventive measures is the risk inventory and evaluation, as generally prescribed by the Working Conditions Act. The aspect of psychosocial work load should be included in this. More specifically, an employer could conduct an employee satisfaction survey (“MTO”) to gain insight into whether or not employees feel safe within the organization. In addition, it is advisable to record in a code of conduct (or other document accessible to employees) what is desirable and what is undesirable or unacceptable behavior when it comes to psychosocial workload. The employer will have to set a good example with regard to the desired behavior. In addition, the employer will have to actively inform his employees of the contents of the code of conduct.
Confidential counselor offers insight
In addition to a code of conduct, appointing a confidential counselor can be a good part of the policy to be implemented. Even in the event that a report of an incident of psychosocial work burden to a confidential counselor does not lead to further action towards employees, the report does create a picture of the nature, cause and extent of the psychosocial work burden within the employer's organization. basis on which the employer can (and must) take measures. A confidential counselor will have to be independent. The employer will therefore have to carefully consider who is the appropriate person for this. In line with the explanation of the House Whistleblowers Act, it is not obvious to appoint a board member or the head of human resources as a confidential counselor. They will have to take measures if there is a psychosocial workload, so that they are not independent in the role of confidential counselor. In addition, the employer will have to facilitate the confidential counselor in his role and provide guidance on how to carry out his role.
Draw up a complaints procedure
In addition to drawing up a code of conduct and appointing a confidential counselor, the employer can record in a complaints procedure how a report of psychosocial work strain will be handled. A complaints procedure contains regulations on the way in which a report is handled, such as the composition of a complaints committee and the way in which the principle of audi alteram partem is applied. In addition, the complaints procedure can also specify the sanctions that the employer can attach to an incident of psychosocial work strain once established. This is the repressive part of the policy. This could include a written warning, a reprimand or summary dismissal. However, care must be taken with the most far-reaching sanction of summary dismissal. Case law from the Supreme Court – and lower courts – teaches that the employer strengthens its position when the sanctions are built up. Summary dismissal after an employee has already been confronted several times about his behavior is generally more likely to last than when a 'first offender' is immediately summarily dismissed. Moreover, the employer cannot make mistakes overnight and must have the facts clear before a sanction is imposed. When it comes to psychosocial work strain – and sexual harassment – public opinion is clear. Employers are very aware of this, but at the same time they have their own responsibility to prevent and tackle psychosocial work burden in their own company on the basis of policies they formulate themselves. This can put a stop to the practice whereby psychosocial work strain leads to a termination agreement between the employer and the victim - as was previously the usual solution to get rid of the issue.
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