Create a confidential counsellor plays an important role in ensuring and encouraging a safe working culture. But is having a confidential counselor mandatory? In this article we will answer this question. We also discuss relevant legislation, initiatives and obligations for organisations with regard to social safety in the workplace. This is covered by the Working Conditions Act psychosocial work load (PSA).
Is a confidential counsellor mandatory?
It is difficult to give a clear answer to the question of whether a confidential counselor is required. At the time of writing (June 30, 2023), it is not yet mandatory to appoint a confidential counselor. However, according to the Working Conditions Act, you are obliged to ensure the safety and health of employees in all aspects related to work. Article 2 of the Working Conditions Act obliges the employer to implement a policy aimed at preventing or limiting the psychosocial workload (PSA). In the current law, it is mandatory to implement a PSA policy, but the appointment of a confidential counselor is not yet mandatory. It is a way to comply with various legal obligations.
The private member's bill by Senna Maatoug (GroenLinks).
However, Maatoug's private member's bill proposes a change to this. This change means that in the future employers will be obliged to appoint an internal or external confidential counselor at organisations where more than ten employees work.
For example, a number of articles are being amended and added to the Working Conditions Act that explicitly address the role of a confidential counselor. The most important addition is Article 13a: Assistance by confidential counsellors. This article of law regulates the following matters:
- Employees who encounter undesirable behaviour in the workplace must be able to turn to an internal or external confidential counselor.
- If the organisation has a works council or staff association, the choice of the confidential counselor (and the extension and termination of that person) must be submitted to these bodies.
- The duties of a confidential counselor
- The confidential counsellors must have such independence and expertise. For example, the confidential counselor must be free of conflicts of interest and have the necessary knowledge and skills to adequately perform his or her duties. The quality and training requirements for confidential counsellors will be elaborated in further regulations. This is to prevent a proliferation of rogue providers and to ensure that confidential counsellors are well trained and up-to-date with relevant knowledge and skills.
Current status of the Maatoug initiative law
On May 23, the House of Representatives agreed to Maatoug's proposal, as a result of which the law was passed and the obligation of a confidential counselor came significantly closer. More than 95% of the bills that are passed in the House of Representatives are also approved in the Senate.
The procedure was discussed in the Senate on June 20. It cannot be said exactly when the bill will be put to the vote in the Senate.
A number of addenda have been added to the bill, the most important of which leads to an obligation for all organisations in the Netherlands, from 10 FTE, to appoint a confidential counselor.
The Working Conditions Act (Arbowet)
The Working Conditions Act (Arbowet) imposes various obligations on employers to ensure a socially safe working environment. According to the Working Conditions Act, an employer must:
- Pursue a policy aimed at preventing and limiting psychosocial work burden (PSA), including undesirable behaviour and work pressure.
- Inventory and evaluate risks in the field of PSA.
- Take measures to prevent or limit risks related to PSA.
A confidential counselor can play an important role in implementing the mandatory policy in the field of a socially safe working environment.
By appointing a confidential counselor and effectively implementing the socially safe working environment policy, employers can meet their legal obligations and contribute to a positive and healthy work culture. Pursuing a good policy on a socially safe work culture actually starts with the RI&E.
Is a confidential counselor required in the RI&E and the PvA?
Every employer is obliged to specifically look for methods to improve safety and working conditions within the company. This is done through the mandatory Risk Inventory & Evaluation and the Action Plan and money for every entrepreneur with employees. Within this plan, the employer must carry out an inventory and evaluation of the risks of psychosocial work burden within the organisation. Possible causes, consequences and preventive measures are identified. The purpose of the RI&E is to create a safe and healthy working environment for employees.
The action plan contains the measures that will be taken against the identified risks and the period within which the measures will be taken. The Ministry of Social Affairs (SZW) and Employment identifies a poor working atmosphere and undesirable behaviour as the most common occupational risks in the RI&E. The measures proposed by SZW for this are implementing a policy and engaging a confidential counselor. Is a confidential counselor mandatory? No, but it is a direct consequence of the mandatory RI&E. There are several options for creating an RI&E. On the website rie.nl There are resources and tools per sector that can help you draw up an RI&E. You can also have an RI&E drawn up by an occupational health and safety professional.
Prevention officer
In the Netherlands there is one prevention officer mandatory for every company, regardless of size or industry. The prevention officer plays an important role in carrying out the risk inventory and evaluation (RI&E). Together with the confidential counselor, the prevention officer can play an important role in creating a safe working environment.
Is a confidential counselor required for the Labor Inspectorate?
De Labor Inspectorate plays an important role in the supervision and enforcement of working conditions in the Netherlands. The Labor Inspectorate has a supervisory role when it comes to compliance with the Working Conditions Act. They use a 10-point checklist with regard to undesirable behaviour, on which organisations are checked:
- Is there a current Risk Inventory & Evaluation (RI&E) including an action plan?
- Have rules of conduct been drawn up?
- Has information about undesirable behaviour been given to managers?
- Is it tested whether managers intervene in undesirable behaviour?
- Is there a well-trained and easy-to-find counselor present?
- Is there a known complaints procedure for employees?
- Are there procedures for dealing with victims of unwanted behaviour?
- Are there clear agreements about tackling perpetrators?
- Is information provided about undesirable behaviour to all employees?
- Is there a regular evaluation and adjustment of the policy?
With the help of a self-inspection tool, an organisation can easily check whether it meets these requirements. Noteworthy is the Labor Inspectorate's requirement that a confidential counselor be present, although this is not yet legally required. However, this is explained as: “there must be a confidential counselor, unless the organisation can demonstrate that something comparable has been arranged.”
Whistleblowers Protection Act
De Whistleblowers Protection Act is an important part of labor law and aims to promote integrity and transparency within organisations. This legislation offers protection to employees who want to report abuses, such as fraud, corruption, discrimination or other illegal activities.
According to this law, employers with 50 or more employees are obliged to set up a reporting scheme. This scheme offers employees a safe and confidential way to report suspected abuse.
An important aspect of the reporting procedure is the appointment of a 'confidential counsellor'. This advisor acts as an independent point of contact for employees who want to make a report. The confidential counsellor provides support, advice and guidance during the reporting process. This allows employees to express their concerns with confidence and without fear of reprisal and contribute to an ethical work environment.
This 'confidential counsellor' does not necessarily have to be a confidential counselor according to the law, but the House for Whistleblowers does consider the confidential counselor to be an indispensable integrity provision. However, in various sectors, employers are already obliged to have a confidential counselor due to sectoral codes, agreements, sector and company collective labor agreements.
From when is a confidential counselor mandatory?
Although a confidential counselor is not yet legally required, this is coming closer with the private member's bill by Maatoug of Groenlinks. The question is rather from when is a confidential counselor mandatory instead of when will it become mandatory? Having a confidential counselor in an organisation is essential for ensuring a safe working environment and preventing psychosocial workload (PSA). A confidential counselor is a consequence of legally required policy and the labor inspectorate checks for the presence of a confidential counselor. If this is not available, an organisation must be able to demonstrate that something comparable has been arranged.
