Legislative proposal on mandatory requirement to have a confidential adviser
On 7 October 2020, Member of Parliament Renkema submitted the bill to amend the Working Conditions Act regarding a mandatory requirement to have a confidential adviser. The bill aims to introduce a legal right of access to a confidential adviser and to strengthen the position of the confidential adviser within the organization.
Objectives of the legislative proposal
"Every employee has the right to a socially safe working environment". Research shows that more than 1.2 million people experience undesirable behaviour at work, such as bullying, (sexual) harassment, discrimination and aggression. Misconduct does not only affect the employee concerned, but also the organization itself (bad working atmosphere and absenteeism). By introducing several measures, the bill aims to reduce undesirable behaviour in the workplace and to create a safe working environment for all employees. These measures are explained in more detail below.
Current regulations against undesirable behaviour
According to Article 3(2) of the Working Conditions Act it is primarily the employer's responsibility to protect employees against undesirable behaviour in the workplace. Employers must take appropriate measures to this end. Employers are free to decide what measures they take. The Inspectorate of Social Affairs and Employment (SZW) checks whether the employer has a hazard identification and risk assessment (RI&E) with a plan of action to minimize the risk of undesirable behaviour. In this context, the Inspectorate advises the appointment of a confidential adviser. Currently, about half of the organisations have appointed a confidential adviser.
Proposed regulations against undesirable behaviour
When every employee has access to a confidential adviser and the confidential adviser has a strong position in the organisation, undesirable manners on the work floor can be reduced, according to initiator Renkema. Now, the confidential adviser has no legally protected position in the organisation. Nor are there any specific (quality) requirements. According to the initiator, this means that a confidential adviser cannot always fulfil the important role that he or she should play. Therefore, several measures are proposed. The Inspectorate SZW can impose a warning, a requirement for compliance and (in certain cases) fines if employers fail to comply with the measures.
1. Legal right of access to a confidential adviser
The bill introduces a new Article 13a of the Working Conditions Act. This regulates that every employee has access to a confidential adviser (internal or external). The employer is therefore obliged to appoint a confidential adviser. The Works Council will have a right of consent about the choice, positioning, extension and termination of the appointment of the confidential adviser.
2. Tasks and requirements
In order to prevent that the appointment of a confidential adviser will merely become a formal act, the confidential advisor is given a number of basic tasks. Think about the care, guidance and advice of employees. In addition, the bill sets several requirements with regard to what is expected of a confidential adviser, such as sufficient expertise and experience. The employer must provide support in this respect: The legislator considers some form of training to be desirable. The necessary preconditions must also be in place to guarantee confidentiality, such as a secure environment for interview reports.
3. Statutory (dismissal) protection rules
The bill stipulates that the employer guarantees the independent position of the confidential adviser. The confidential adviser must be able to fulfil his or her function independently and may not be disadvantaged in his or her position in the organization. It is also included that the confidential adviser has a duty of confidentiality. Furthermore, Article 610(10) of Book 7 of the Dutch Civil Code will be expanded, as a result of which a confidential adviser will also be protected against dismissal insofar as their function as confidential adviser is concerned.
A confidential adviser may contribute as a good instrument to combat undesirable manners in the workplace. However, it is important that this confidential adviser is positioned independently. Confidential advisers are often in a vulnerable position, even with legal protection. If the bill comes into force, this will improve their position. Employers may become more aware of the importance of having a confidential adviser and what is expected of them in that context. Moreover, greater visibility and awareness of confidential advisers among employees could increase their willingness to report. The intended date on which the revised Working Conditions Act will enter into force is not yet announced.
Hermine VoûtePartner Attorney at law
P. Hermine E. Voûte, attorney at law, is member of the Employment & Benefits practice group in the Netherlands and chairwoman of the Diversity & Inclusion committee. She has over 33 years’ all-round experience in employment law, with a particular focus on high-profile dismissals, restructurings and collective dismissals, and co-determination procedures.T: +31 20 578 59 75 E: firstname.lastname@example.org