Also in view of the #metoo discussion, integrity in the workplace is a topical subject. After all, it concerns the trust in your organisation, both internally and externally. Every employer benefits from honest and reliable personnel. How can you contribute to this in your role as General Counsel?

Integrity
Integrity is a broad concept. It is not only about acting correctly and complying with rules, but also about responsibility, transparency, communication and supervision. As an employer, your organisation is obliged by law to ensure the safety and health of its employees. This means that on the basis of – inter alia – the Working Conditions Act (ARBO wet) and the Equal Treatment Act (Wet gelijke behandeling), your organisation must prevent undesirable behaviour such as discrimination, bullying, aggression and sexual intimidation as much as possible and pursue a policy to that end. Examples include:

  • Preparing a protocol to prevent undesirable and transgressive behaviour such as bullying and sexual intimidation
  • Implementing guidelines for the use of social media
  • Appointing a confidential adviser
  • Pursuing a policy aimed at addressing alcohol and drug use in the workplace
  • Implementing a code of conduct that pertains specifically to integrity. This could include provisions on accepting business gifts, submitting expense claims and making unauthorised use of or taking company property

Examples from case law
The dismissal with immediate effect of a drunk employee who touched the buttocks of a colleague and made insulting remarks during the Christmas party was not upheld. The court ruled that the employee had not previously demonstrated undesirable behaviour during his 40-year employment. The court believed that an official warning would have been more logical.

An employee showed up at work under the influence of alcohol on two separate occasions. However, the dismissal with immediate effect was not upheld. On the basis of its own alcohol and drugs policy, the employer should have offered the employee a support plan with the help of the occupational physician. Moreover, the employee had always performed well.

The thrift shop employee who reduced the price of a bicycle from €50 to €20 without consultation and then bought the bicycle herself was dismissed. The employer had drawn up rules about purchases by employees and enforced these rules very strictly. The court held that although the employee had not committed theft or embezzlement, from an economic point of view, her actions were equal thereto.

Tips for the General Counsel
In order to safeguard the integrity in the workplace as much as possible, a proper policy is of paramount importance. See the aforementioned examples. In this context, keep in mind that the works council has the right of consent in respect of each proposed decision that might affect the working conditions. The policy must (i) be known to all employees and, in that context, there must be (ii) communication and (iii) information provision. Additionally, with a view to the enforcement of the integrity policy, your organisation could prepare a disciplinary policy and a whistle-blower policy. Finally, it follows from the case law above that, in dismissal cases, forewarned is forearmed and that the company’s correct and strict compliance with its own policy is of great importance. Therefore, when it comes to cases in which integrity is at stake, the advice is zero tolerance.

About the author:

Annejet Balm
+31 20 5736 829
a.balm@lexence.com
https://www.lexence.com/mensen/annejet-balm-2/