Compliance in relation to social entrepreneurship

Employers are responsible for preventing and reducing the psychosocial workload (PSA). Furthermore, employers can be held liable for damages employees suffer in relation to their work activities if an employer has not fulfilled his duty of care for a safe work environment. Because of these obligations and liabilities and in the light of the ongoing #MeToo revelations, many employers nowadays appoint a confidential advisor and establish a grievance policy. Another (often obliged) legal instrument used in this regard, is a whistleblower policy. In the below I will explain the instruments as mentioned above and I will conclude with an overall recommendation.

Confidential advisor
In the Netherlands, there is no statutory obligation yet for employers to appoint a confidential advisor within the organization. However, there is a legislative proposal that does oblige companies hereto. I expect this proposal will come into force soon.

A confidential advisor may not be disadvantaged for his or her role as a confidential (similar to the protection of members of a works council). Both an internal confidential advisor and an external confidential advisor can be appointed. The advantage of an internal confidential advisor is that this it is easier to establish and can be more approachable (depending on the person). Furthermore, an internal advisor is less expensive. The advantage of an external confidential advisor is the independence of the advisor in relation to the organization. A company may choose to appoint more than one confidential advisor, for example one man and one woman or both an internal and external advisor.

It is advisable not to appoint a higher executive or HR employee. Most importantly, the person must be easy to find for employees. This means that the contact details of the advisor should be included in a code of conduct / anti-harassment policy that is well known within the company. Furthermore, it is advisable to provide the advisor with a private room that can be locked.

The main rule is that all information shared with the confidential advisor is confidential. Without this confidentiality as core principle, employees will not feel free to visit the confidential advisor and share information. It is recommended to agree upon an internal privilege that the confidential advisor cannot be forced to disclose information. A confidential advisor does not have statutory privilege.

If the confidential advisor is included in a regulation on employment conditions (this is fairly common) the works council has an endorsement right on the introduction of such a regulation. Based on the legislative proposal the works council has also an endorsement right on the appointment of the confidential.

Grievance policy
Although not legally obligated (unless stipulated in a CLA or company handbook), most employers do have a grievance procedure. Grievance policies are intended to allow companies to resolve complaints in a cost-effective and timely manner and to avoid a legal procedure.

A grievance policy describes the procedure for presenting and settling workplace disputes. It is important to define the types of grievance the procedure covers. But most important is the
protection of employees that report a complaint. Employees must feel secure in order to encourage reporting. This means that the grievance policy need to contain measures that prevent any backlash against those who choose to report.

The works council has an endorsement right when a grievance procedure is established or modified.

Whistleblower policy
One must distinguish between a grievance policy and a whistleblower policy. The latter is a specific obliged procedure for dealing with a report of a wrongdoing within the organization. A wrongdoing concerns suspicions of abuses in which a public interest is at stake, but also possible breaches of EU law. A breach of EU law is an act or omission concerning certain specific areas. The reporter of the wrongdoing might be a victim, but can also be a witness or by­stander.

Employers with 50 or more employees are required to set up a whistleblower policy. The policy must protect a reporter against retaliation due to reporting the wrongdoing. Due to a revision of the Whistleblower Protection Act that is currently being debated, anyone who performs work for the company must be able to report a wrongdoing. This includes former employees, volunteers, interns, independent contractors and candidates. A works council has an endorsement right for every proposed decision to lay down, amend or withdraw a whistleblower policy.

After the implementation of revised Whistleblower Protection Act an employer may not oblige the reporter to report internally first in any way, or use wording that makes the reporter feel obliged to report internally first. This does not change the fact that the employer is still obliged to have an internal reporting channel in place.

Time wise, the reporter must receive a confirmation of receipt within seven days after the report. Furthermore, a reasonable timeframe for informing a reporting person about the following steps should not exceed three months. Where the appropriate follow-up is still being determined, the reporting person should be informed about this. If the nature and complexity of the subject of the report require a lengthy investigation, the three month period may be extended.

Compliant with policies?

Companies that have established a confidential advisor, grievance procedure and whistleblower procedure may think that they are compliant. But nothing is further from the truth. Policies are not worth anything and can even have an adverse effect if there is no work environment in which employees are encouraged to speak up and where they know (by leading by example) that they are taken seriously.

Over de auteur(s)

Esther van der Meulen
Advocaat, Partner Arbeidsrecht | Lexence
+31 6 3309 1737
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