Safety for employees in the workplace is playing an increasingly large role in our society, and more and more court cases concern boundary-crossing behaviour in the workplace. Colleagues, too, must offer each other a safe working environment. As an employer, do you know the legal framework for undesirable conduct, what the consequences of such conduct can be, and how best to deal with it?

Under the Working Conditions Act (Arbowet), employers must have a policy in place regarding psychosocial workload (PSA). PSA policy stands for preventing undesirable conduct such as bullying, aggression and sexual harassment. Having a confidential counsellor is an important part of the policy you, as an employer, can maintain!

In a recent ruling of 7 December 2022, the Amsterdam subdistrict court ruled on a situation involving boundary-crossing behaviour. What was going on there?

Facts of the case

In this case, a male employee starts work with his employer as a communications manager. It does not take long before three female employees anonymously report this manager to the confidential counsellor. Their reports concern conversations they have with the manager, in which he talks about his preference for younger women, his exes, their age and their appearance. His Tinder dates and sex life also come up. Besides talking about this, he shows, unprompted, photos and videos of the women he is dating to his younger female colleagues.

The manager is considerably older and holds a higher position than the three female employees. This means it can be said that the manager had a role-model function and a certain position of power within the company.

After the reports, the manager is offered a settlement agreement. He refuses this, after which the management initiates a dissolution procedure.

Court’s ruling

The subdistrict court rules that the employer should have investigated whether the reports of the three female employees were substantively sound. The management should then have confronted the manager with his conduct and warned him that this behaviour would not be tolerated. The management could also have imposed a sanction on the manager if he showed the unacceptable behaviour again. According to the subdistrict court, the employer acted too hastily, as a result of which trust between the manager and the reporting employees was not restored.

The communications manager was not given a chance to change his behaviour. The employer therefore acted carelessly and culpably. Nevertheless, the court cannot find that there was serious culpability, so the man does not receive fair compensation.

Internal reporting and complaints procedure and internal confidential counsellor

Being able to make a confidential report to an internal confidential counsellor is very important. Among other things, to prevent unnecessary escalation of psychosocial workload and thereby, as an employer, to be able to fend off liability claims. In addition, that confidential counsellor needs to be well trained in order to properly guide the reporting party through the follow-up steps, or to refer them to care providers and experts. It is not intended for the confidential counsellor to establish the facts or advise on what follow-up steps should be taken or what the reporting party should do. It is, however, the case that the employer must establish the facts by hearing both sides, if the reporting party wants the employer to do something about it and therefore decides to escalate the report after having discussed that option with the confidential counsellor.

An employer must then investigate adequately and demonstrably and, if there are grounds, take action against undesirable and (sexually) boundary-crossing behaviour. Appointing an internal confidential counsellor and having an internal reporting and complaints procedure is a must here.

This confidential counsellor should not only know their own role well, but also the legal framework surrounding undesirable conduct and integrity violations. In particular, employers should also be aware of the legal framework, so that they know how best to conduct an investigation carefully but also with a degree of urgency when combating undesirable (sexual) harassment in the workplace.

On 16 February 2023, The Legal Company is holding the Masterclass ‘Legal framework for undesirable conduct and integrity violations.’ This is a deeper dive following on from our Masterclass ‘Become a confidential counsellor in 1 day’ (which will be repeated in 2023). With knowledge of the legal framework, you can prevent a situation such as the one from the case described above.

What will you learn during our Masterclass?

• The different types of undesirable conduct and integrity violations and the relevant legislation and regulations
• The different types of internal (informal) and external (formal) legal procedures following a complaint or report
• The legal position of the confidential counsellor and how this can be properly arranged internally

For more information and to register, click here!

Would you like to stay informed about this topic and all other relevant developments for businesses regarding employment law, contract law, corporate law and privacy law, and receive legal tips & tricks from our corporate lawyers? Sign up here for The Legal Alert!