The confidential counsellor
in a Dutch legal framework
Is the appointment of a confidential counsellor currently mandatory?
The Working Conditions Act (the “Arbeidsomstandighedenwet”) requires employers to implement policies to counter psychosocial workload (PSA), aimed at the prevention and the handling of reports and complaints. PSA is defined in the Working Conditions Act as factors, such as discrimination, sexual harassment, aggression, violence, bullying and work pressure that cause stress in the work situation. An employer is obliged to map the PSA risks; this is done in what is known as a Risk Inventory and Evaluation (RIE).
Using the RIE as a basis, an employer must adopt a plan of action to prevent PSA.The appointment of a confidential counsellor is deemed an appropriate part of an action plan. The Labour Inspectorate also deems a confidential counsellor an adequate instrument of the PSA policy.So, appointing a confidential counsellor is not yet mandatory, but many companies do choose to properly shape a policy to prevent psychosocial work complaints in this way.
Legislative proposal to make confidential counsellors mandatory
A legislative proposal to make the confidential counsellor mandatory is being debated in the House of Representatives. The objective of this legislative proposal is to give every employee a legal right of access to a confidential counsellor and to strengthen the position of the confidential counsellor in the organisation. The aim of the legislative proposal is to reduce undesirable behaviour in the workplace and to create a safe working environment for all employees.
If this legislative proposal comes into force, a new provision will be added to the Working Conditions Act. It will regulate the following:
- Every employee who is confronted with undesirable behaviour at work, such as discrimination, intimidation, sexual harassment, aggression, violence or bullying, must be able to contact a confidential counsellor.
- Every employer with a workforce of 1.5 fte must appoint a confidential counsellor. This can be an internal or external confidential counsellor.For small organizations it is possible to collectively appoint a confidential counsellor.
- The Works Council or Employee Representative Body has the right of consent (Article 27 of the Dutch Works Councils Act) regarding the choice and positioning of the confidential counsellor, as well as the extension and termination of the term of office.
The basic duties of the confidential counsellor are:
- To receive, support and advise an employee and to refer them to a professional care provider (if necessary).
- To advise (also at own initiative) the employer, Works Council or Employee Representative Body on undesirable behaviour (identifying bottlenecks and prevention options).
- To Provide information about undesirable behaviour and the position of the confidential counsellor (role and accessibility).
- To issue an annual report of findings to the employer, Works Council and Employee Representative Body.
The new law also stipulates that:
- The confidential counsellor has a duty of confidentiality;
- The employer must guarantee the independent position of the confidential counsellor;
- The confidential counsellor must have the expertise, experience and facilities to perform their duties.
The new legislative proposal does not have much impact for many companies that already work with one or more confidential counsellors. For those companies, the new law will not change much in terms of how they work in practice.
The situation is different for employers who do not yet work with a confidential counsellor. They will have to implement a good and clear policy and process regarding confidential counsellors.
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What are the advantages of having a confidential counsellor?
Is having a confidential counsellor be useful or necessary?
Although appointing a confidential counsellor is not yet mandatory, it does have many practical advantages:
- Preventive effect: by appointing a confidential counsellor, you as an organization make it clear that you do not tolerate undesirable behaviour in the working environment;
- Early identification: if a confidential counsellor is easily accessible, this increases the chance that sign of unacceptable behaviour are quickly detected.
- Reduction of absenteeism due to illness: every year a significant part of employee absenteeism is caused by psychosocial workload. This is a major cost item for the employer. If action is taken in time, long-term absenteeism can be avoided;
- Reduction of escalation and conflicts: The early intervention by a confidential counsellor can prevent further escalation and labour disputes (involving possible liability due to bad employment practices);
- Reduction of reputational damage: an organization wants to try to resolve undesirable behaviour as quickly as possible; escalation often leads to reputational damage, as recent examples in the media have shown.
Do you want to fulfill the role of confidential adviser in your organization in a professional way?
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