What is undesirable behaviour?
Undesirable behavior in the workplace includes various forms of undesirable behaviour, including sexual harassment, aggression, violence and bullying. Although Dutch legislation does not provide an explicit definition for this behaviour, certain aspects of it are specified. For instance, sexual harassment is defined as behaviour with sexual connotations that aims to affect a person’s dignity, resulting in a threatening, hostile, insulting, humiliating or offensive situation. Determining whether certain behaviour is undesirable depends on the circumstances. In some cases, there may be a ‘grey area’ , with the context, functions of those involved, power relations and other factors playing a role in determining whether cross-border behaviour has occurred. What seems harmless to one person may be perceived as annoying, unwanted or intimidating by another.
What role does the employer have in cases of undesirable behaviour?
The employer has an important role in preventing and addressing undesirable behavior in the workplace.
For example: Section 7:611 of the Civil Code states that an employer is obliged to conduct himself as a good employer. Section 7:658 of the Civil Code adds that the employer is obliged to set up and maintain the workplace in such a way, and also to take such measures and provide such instructions for the performance of the work as are reasonably necessary to prevent the employee from suffering harm in the performance of his work. In addition, under the Working Conditions Act, the employer is obliged to pursue a policy aimed at preventing and limiting psychosocial workload (PSA). This PSA policy includes measures against sexual harassment, aggression and violence. The law also requires the employer to ensure a safe working environment, in which employees can turn to confidential counsellors or a complaints procedure.
An employer PSA policy should consist of six components
- A Risk Inventory and Evaluation (RI&E), and a Plan of Action;
- monitoring of employee compliance with the policy;
- preventive measures, including meeting legal obligations and organising expert support;
- a code of conduct and reporting protocol;
- the appointment of an independent ‘decision table’ to make decisions on reports, and
- possible legal action in case of cross-border behaviour.
5 steps you should take as an employer when a report of cross-border behaviour comes in
In practice, we regularly see hasty reactions, such as immediate suspension or dismissal of the reported employee. These measures are often inappropriate and unnecessary. Reports should be handled carefully, following the following steps:
- Step 1: Notification and contextGather comprehensive information about the report and the situation, conduct a careful initial interview with the reporter, be open about confidentiality, and investigate the report without unauthorised enquiry.
- Step 2: Inform the accused and consider possible temporary measuresInform the accused of the report, ensure the anonymity of the reporter, communicate objectively, and consider temporary measures if necessary.
- Step 3: Consider follow-up stepsConsider various measures and legal obligations for follow-up steps. An informal conversation with the accused, a corrective interview, a group discussion, mediation or conciliation are possibilities. Also check whether there is a legal duty for follow-up (reporting, for example) and comply with it.
- Step 4: Choose the right intervention and/or researchDefine the goal and choose the right intervention and/or research.
- Step 5: Keep stakeholders informed. Keep informing the reporter and the accused and constantly check whether the actions match their needs.
Do you decide to investigate?
Should you decide to investigate, the magic word is diligence! Doing due diligence should include the following:
- continuously weigh up the interests of the complainant/reporter and the person against whom the complaint/report is directed;
- hear both sides of the argument;
- share the investigation question with the person against whom the complaint/notification is directed so that they know what the investigation focuses on;
- be mindful of the privacy of both the complainant/reporter and the privacy of the person against whom the complaint/report is directed;
- think carefully about who will conduct research. It is not always necessary to have the investigation conducted by an external party. Case law shows that an internally conducted independent investigation can also be sufficient (e.g. an HR adviser and compliance officer), as long as the investigators are sufficiently independent.
Either way, it remains to strike the right balance between the employee’s right to a careful investigation on the one hand and the other employee’s right to a safe working environment on the other.
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Do you have a question on this topic? Please email f.damen@lexence.com and/or s.dekker@lexence.com.
