Much has been written in recent weeks about abuse and transgressive behaviour in the workplace. As an employer, take note of the following learnings:
- Employers not only have a legal duty to ensure a safe working environment, but it is of utmost importance for a healthy organisation to pay attention to this issue.
- The consequences of not having a safe working environment in place can be far-reaching. Think incapacitation of a victim, liability for possible policy failures in the organisation, departure of valuable employees and, last but not least, reputational damage.
- Anno 2022 – even in a small organisation – you can no longer do without a code of conduct. This should include rules of conduct that make clear what behaviour is expected from employees and what behaviour will not be tolerated. It should also include a clear complaints protocol in the code of conduct that can be followed if things do go wrong. Even if you don’t expect it, you may be faced with a report/complaint. The government has prepared a handbook on code of conduct that you can download here.
- Besides drawing up clear rules of conduct, a good policy on undesirable behaviour includes the presence of a confidential advisor. This can be someone from within the organisation, but it can also be chosen to appoint an external confidant. The advantage of an external confidant is that the threshold for employees to report transgressive behaviour is perceived to be lower in practice, because it involves someone outside the organisation to whom they can tell their story. Every confidential advisor (including an internal confidential advisor) has a duty of confidentiality and is always on the side of the complainant.
Setting up a complaints committee can also be part of a policy on undesirable behaviour. A complaints committee may be mandatory under legislation (e.g. for healthcare providers or civil servants) or via a collective labour agreement (e.g. the collective labour agreement for primary education). But organisations can also decide on their own to set up a complaints committee.
WHAT TO DO WHEN A REPORT/COMPLAINT ABOUT TRANSGRESSIVE BEHAVIOUR COMES IN?
If a report/complaint is received, calling in an external complaints committee and/or an investigation agency is sometimes an obligation and then also the right step if the complaint is serious and complex.
In practice, we often see that things go wrong when conducting the investigation into the possible wrongdoing. And that is not surprising, because in the tension and hectic atmosphere surrounding a report, there is a good chance of procedural mistakes being made that can cost an employer dearly.
Moreover, external investigation agencies are often expensive. The question is whether (small) employers should and want to resort to an external investigation agency for every complaint.
Another underexposed aspect around transgressive behavior in the workplace is evidence. It remains to be seen whether an (external) investigation can sufficiently establish that transgressive behaviour took place and, moreover, this can turn into a yes/no debate.
If it is not sufficiently established that an employee is guilty of transgressive behaviour, the trust of the employer and/or the employee is often damaged and the complainant no longer wants to work with the employee in question. Perhaps mediation is an option in such cases, but there is no ready-made solution. So as an employer, it is good to be aware of this and take well-considered steps.
CONCLUSION
The conclusion is that it is essential to have a policy on transgressive behaviour in the workplace and, after receiving the report, to consider whether and how to investigate the complaint. We have a lot of experience with these kinds of issues and are happy to think along in that process. We are also happy to help in the preliminary process, such as putting the code of conduct in order. Contact us by phone or email and we will look into it with you!
