Violations of integrity in the workplace have come to the attention of many organisations due to the recent developments in the Dutch talent show The Voice. With good reason! It is the employer’s responsibility to ensure that everyone can work in a place where no (sexual) transgressive behaviour occurs. In this blog you will find a practical step-by-step plan for preventing transgressive behaviour in the workplace. In addition, you can read what to do if a report of transgressive behaviour is made.
What is transgressive behaviour? Behaviour is transgressive when the behaviour of one person crosses the boundary of the other. It is therefore very different for each person when certain behaviour is considered as transgressive. This is what makes it so complicated for employers.
There are several forms of transgressive behaviour:
- Bullying: ignoring and excluding an employee, imitating and ridiculing, intimidating and gossiping about employees
- Discrimination: disadvantaging or excluding people on the basis of personal characteristics such as gender, colour, religion, illness or disability
- Sexual harassment: any form of sexual advances, requests for sexual favours or other sexually oriented verbal, non-verbal or physical behaviour which is experienced as transgressive.
- Aggression/violence: verbal or physical harassment, threats or attacks.
Transgressive behaviour can be caused by people within the organisation (such as colleagues and supervisors), but also by third parties (clients, customers, patients). This can happen, for example, in healthcare, where patients may fall in love with employees, etc. A recent example we saw in practice concerns an employee at a penitentiary who was hit with a chair by a prisoner, breaking his wrist in several places.
Duty of care of the employer
As an employer, you have a duty of care for your employees. This means that you have to provide a safe and healthy working environment. Transgressive behaviour can be classified as psychosocial workload. As an employer, you are obliged to implement policies aimed at preventing or limiting psychosocial workload (and therefore also transgressive behaviour). In addition, you must also map out the risks related to transgressive behaviour by means of a Risk Inventory and Evaluation (RI&E).
Below is a practical step-by-step plan to prevent transgressive behaviour in the workplace as much as possible.
- Establish core values, in which equality in the sense of respect for all employees is paramount. Work on a culture that stems from these values and let these core values be reflected in the policy that is drawn up.
- Establish policies that prevent/limit transgressive behaviour. Explicitly mention transgressive behaviour in the RI&E. Also make sure that this policy is understandable for your employees and think about how you communicate this policy to your employees.
- Set clear sanctions in the policy in the case of violation, so that the policy can be enforced. These could include suspension, an official warning or (in serious cases) instant dismissal. Both the policy and the sanctions must be communicated explicitly and sanctions must actually be applied in case of transgressive behaviour.
- Draw up a code of conduct and a complaints procedure as part of the policy. How do we behave in the workplace? And to whom can an employee apply in case of (sexually) transgressive behaviour?
- Appoint an easily accessible and preferably external confidential advisor and a complaints committee. In order to safeguard the independence of a complaints committee, the bill ‘Verplichtstelling vertrouwenspersoon ongewenst gedrag op de werkvloer’ regulates that the complaints committee must also include external members from outside the organisation. This bill is still under discussion in the Lower House.
- Do you have fifty or more employees in your organisation? Then you are also obliged to introduce a whistleblower regulation.
- Are employees within your organisation represented by a works council? If so, involve the works council in drawing up the policy in time. After all, it also has the right to consent with regard to the social policy.
What should you do when you observe transgressive behaviour?
In practice, we see that employers have difficulty in taking the right steps and measures when transgressive behaviour is observed. This may lead to for example the payment of a fair compensation of EUR 200,000 to an employee. It is therefore important that you know what to do in case of transgressive behaviour being observed within your organisation. For this reason, we have also drawn up a step-by-step plan.
- Have a conversation with both the reporter and the accused. Have this conversation with two people (for instance HR and manager) and put this conversation in writing.
- Advise the notifier to request a meeting with the confidential counsellor/company doctor/victim support, depending on the seriousness of the report. Ask carefully what the reporter needs.
- Then investigate the report or have an investigation carried out by a complaints commission or an investigation bureau. If necessary, put the defendant out of action during this investigation.
- Depending on the outcome of the investigation, take appropriate measures, such as suspension or transfer to another location. Consider all the circumstances.
Do you have questions concerning transgressive behaviour in the workplace? Feel free to contact Renée Huijsmans or Jaouad Seghrouchni, Attorneys-at-law at our Employment, Employee Participation & Pensions department.