In view of the recent news about The Voice and the football director of AJAX, it has become clear that since #MeToo not enough attention has been paid to recognizing and combating sexual harassment and unwanted behaviour at work. Where can employees safely go if they want to report unwanted behaviour?
Recently, the Institute for Human Rights wrote a letter to the responsible Ministers, urging the obligation to have a confidential adviser in the workfloor. Long before all recent commotion, in November 2020, a bill was submitted that would oblige employers to appoint an internal or external confidential adviser.
Appointment and duties
The bill entailed that the works council would have the right of consent with regard to the appointment of an internal or external confidential adviser. If the appointment concerned an employee, he/she would receive the same protection against dismissal as a member of the works council. The duties of the confidential advisor would include assisting the employee who is confronted with unwanted behaviour, calling in professional help if necessary, and arranging an expert or mediator to resolve conflicts.
Council of State’s advice
The Council of State’s judgement on this bill was published on January 26 last. The Council of State is of the opinion that a general obligation to appoint a confidential adviser is too severe and unnecessary, especially for SMEs also in view of the associated costs. Now that the social partners (employers and trade unions) have not previously insisted on regulations, the Council of State believes that it is first up to them to make agreements about this, for example via collective labour agreements and/or health and safety policies.
Despite the negative advice from the Council of State, the bill has been maintained. In its Explanatory Memorandum - in response to the criticism of the Council of State – some suggestions has been made to make the introduction of a mandatory confidential adviser accessible and feasible at low cost. The bill will be back on the agenda of the House of Representatives on February 23. If the proposal is accepted, Van Bladel Advocaten will of course inform you further.