Addressing unacceptable workplace behaviour: key considerations for employers

Reports of unacceptable behaviour in the workplace, such as bullying, (sexual) harassment, discrimination, and aggression, have increased in recent years. Unacceptable behaviour not only impacts the parties involved but also entails obligations for employers as part of their duty of care. Below, we outline several considerations for employers in this regard.
 
What constitutes unacceptable behaviour in the workplace?
Under the Working Conditions Act (Arbowet), employers are required to implement policies against undesirable conduct to prevent an excessive psychosocial workload (PSA). According to the Arbowet, PSA includes discrimination, sexual harassment, aggression and violence and bullying. Aggression can range from harassment by customers, co-workers, or supervisors to physical violence. Bullying includes excluding, ignoring or teasing others, possibly based on appearance, belief, sexual orientation or age. Discrimination can overlap with bullying and may relate to age, sexual orientation, gender, nationality, ethnic background or disability, among others.
 
Employer's duty of care
Employers have a statutory duty of care to provide a safe working environment for their employees. If employers fail in this duty of care, they may be liable for any damages suffered by employees as a result. The duty of care is also defined by the Arbowet.
 
According to the Arbowet, employers’ policies should focus on addressing unacceptable behaviour and boundary-crossing behaviour of both co-workers or supervisors and external parties such as customers, patients, students, or passengers. The primary objective of such policies is to prevent or, if prevention is not possible, minimise psychosocial stress in the workplace. The Arbowet is a framework act and currently does not include an obligation to appoint a confidential advisor, for example. However, there is a legislative proposal to this effect. The Social Affairs and Employment Inspectorate (SWZ) can also check whether employers have a Hazard Identification and Risk Assessment in place (RI&E) including an action plan to minimise the risk of unacceptable conduct.
 
Proposal to mandate a confidential advisor
Currently, the Dutch Senate considers a legislative proposal aimed at mandating confidential advisors in the workplace. This confidential advisor will have various tasks, such as guiding and advising employees. Additionally, confidential advisors will have (additional) protection against dismissal.
 
Employer considerations
Currently, there are few concrete legal guidelines for employers in fulfilling their duty of care. Although the Arbowet provides a framework for preventive policy, there is still room for customisation. Case law suggests that, within the framework of the duty of care of employers, the following guidelines can be expected:

• Employers are expected to establish a preventive policy, have a complaints procedure, and establish a sanction policy. Complaints procedures or confidential advisors are (still) not mandatory under the Arbowet. Nevertheless, it is advisable to appoint a confidential advisor, both for preventive and reactive purposes. The same applies to a complaints procedure. This, not only serves as evidence of compliance with the duty of care, but also provides guidelines for handling complaints.
• Any complaints filed, it must be handled promptly and carefully. Careful handling of complaints requires guarantees for the principle of hearing both sides and conducting a thorough and objective investigation. Additionally, there should preferably be an independent and knowledgeable complaints officer leading the investigation. Careless handling of complaints could be grounds for compensation. This applies even if an external committee has been established.
• After a careful investigation into the complaint, employers must respond appropriately. The means chosen by employers must be proportionate to the seriousness of the offence. Possible actions include warnings, reprimands, fines, transfers, and, in extreme cases, termination of the employment contract for urgent cause. Under circumstances, sexual harassment could constitute an independent ground for immediate termination of the employment contract. However, instant dismissal remains a last resort and must be assessed under established case law based on all circumstances of the case. Employers are expected to balance the interests of the perpetrator, the company's reputation, and protection of the employee against each other.
• Even after handling complaints and taking measures, employers must exercise due diligence. For example, if a complaint is found to be valid but both parties decide to continue working for the employer after a consultation, the employer must proactively ensure that the perpetrator in question has indeed ceased the unacceptable behaviour. Additionally, employers must ensure that work relationships have been sufficiently restored.

Conclusion
We advise employers to not only establish preventive policies, complaints procedures and sanction policies for unacceptable behaviour in the workplace but to also appoint a confidential advisor. The careful handling of complaints requires at least hearing both sides and conducting an objective investigation. In some cases, appointing an independent complaints officer could be necessary as well. Sanctions must be proportionate, and employers must continue to actively monitor after handling complaints.
 
Should you have any questions regarding the above, please do not hesitate to contact us.

With thanks to Emma Daramaja