It's been more than a year since BOOS: THIS IS THE VOICE. Where are we now?
Attention for misconduct in the workplace has grown rapidly over the past year. What happened in the legal domain? A brief overview.
The BOOS episode on sexual misconduct at The Voice of Holland (January 2022) has played an important role in increasing the awareness of unacceptable workplace behavior in the Netherlands. The Dutch union of confidential counsellors (LVV) recently indicated that attention for workplace misconduct as well as the number of reports have increased significantly. The disclosures at The Voice, followed by many other cases (e.g. AFC Ajax, De Wereld Draait Door, and most recently NOS Sport), have created momentum for change. Have we crossed the tipping point and will (social) safety at work become a priority?
National Action Program
In response to the BOOS episode, the Dutch government announced the development of a national action plan against sexual misconduct and sexual violence. Mariëtte Hamer (former chairman of the Social Economic Council) was appointed as independent commissioner. The outline of the plan, published in June 2022, emphasized an approach aimed at cultural change, pointing out that sexual misconduct is considered a structural problem of society, rooted in power imbalances and gender stereotyping.
Most recently, a year after the BOOS episode, the full version of the National Action Program titled ‘Recognizing, acknowledging and respecting each other’s wishes and boundaries’ was launched. The report presents several lines of action clarifying the need for a combination of practical improvements (proper and accessible assistance and appropriate organizational processes), cultural change (shared societal norms and values), and legislative adaptation (reflecting changed societal norms).
For this post for Leiden Law Blog, I’m paying specific attention to the latter, with a primary focus on the workplace. Part of the National Action Program is dedicated to the improvement of labor legislation to prevent and combat workplace misconduct, by providing guidelines to both employers and employees and emphasizing employers’ responsibility for safe work environments. Since legal and societal norms are inevitably interdependent, the aim of the adapted legislation is that it reflects which behaviors are considered unacceptable or punishable by society – thereby contributing to the behavioral changes required to ensure safe workplaces.
Dutch labor legislation currently includes several provisions on safety at work that can be associated with workplace behavior. In general, the Dutch Civil Code requires employers and employees to act as ‘good employers’ and ‘good employees’ (art. 7:611). This general standard can be interpreted as a criterion of reasonableness and fairness, which is often used by judges to assess the behavior of both parties in case of conflict. The Duty of Care (art. 7:658 of the Civil Code) emphasizes that the employer is primarily responsible for a healthy and safe work environment to prevent employees from suffering damage in the performance of their job. According to this provision, employers are not only responsible for the physical labor conditions, but also for their employees’ psychosocial workload. The Working Conditions Act prescribes the care duties of the employer in more detail. The employer is, for instance, obliged to conduct a risk inventory and evaluation (art. 5), which should include a description of potential hazards and measures to mitigate risks.
In the case of unacceptable workplace behavior, the employer’s duty of care might involve appointing a confidential advisor, establishing a complaints procedure, and properly investigating reports of misconduct. Although such measures have not (yet) been included in written law, they are often used by judges to evaluate whether an employer acted diligently (and to attribute liability accordingly). An example is a case on sexual intimidation of an employee by her manager in which the court ruled that the employer did not fulfill his duty of care because the employee’s complaints had not been sufficiently investigated.
As mentioned earlier, the Dutch government has pledged to review and adapt current regulations to combat unacceptable behavior at work.
Firstly, the Parliament is currently processing a legislative initiative to amend the Working Conditions Act with an obligation for employers to appoint confidential advisors. The proposal prescribes the tasks confidential advisors at least should perform: apart from their supportive role, they should also focus on prevention by increasing awareness and providing education. Also, the proposal describes the employer’s duties regarding the follow-up of the advisor’s (solicited and unsolicited) advice. A confidential advisor may be appointed internally or outside the organization, as long as the employer ensures their independent position. The risk inventory and evaluation should include the measures taken to guarantee a proper functioning of the confidential advisor(s).
Secondly, the Dutch government is currently verifying whether employers can be obliged to establish an effective complaints procedure to enable diligent investigation and processing of formal reports. Recent insights show that employers are struggling to find an adequate approach in this regard.
Thirdly, the Dutch government has committed to the ratification of the International Labor Organization’s convention 190 on the elimination of violence and harassment at work. With this international treaty, the ILO requires governments to take appropriate measures regarding ‘protection and prevention’, ‘enforcement and remedies’ and ‘guidance, training and awareness-raising’. The convention was adopted in 2019 and entered into force in June 2021 and has meanwhile been ratified by more than fifty countries. In the absence of earlier ratification by the Dutch government, a coalition of social partners, companies, lawyers, women’s organizations and other parties submitted a petition with an urgent call for action. A proposal on the implementation of C190, which will affect multiple elements of national legislation, is expected to be published in the first half of 2023.
Mandatory code of conduct?
And last, but certainly not least, the Dutch government is examining the imposition of a legal requirement for employers to establish a code of conduct. Whereas laws on confidential counsellors and complaints procedures are predominantly focused on remedies, the establishment of a code of conduct aims specifically at prevention. In my opinion, this is the most interesting legislative development thus far, since organizations will be required to determine which behaviors are acceptable or unacceptable according to collective norms. This will inevitably lead to discussions in the workplace, creating a dialogue that might help to get to the core of the problem and develop potential solutions.
Nevertheless, questions should be asked about the effectiveness of organizational codes of conduct. Does a code of conduct, as a self-regulatory policy, hold the ability to change tenacious behavioral patterns? And equally important: can a legal requirement to establish a code of conduct guarantee the serious efforts of employers to combat unacceptable workplace behavior, instead of letting them ‘tick the box’, merely meeting the minimum requirements? To make informed decisions on the development of such regulations, empirical insights on behavioral effects are necessary.
After the disclosures at The Voice (followed by many other cases), attention for workplace misconduct has increased. The Dutch government has expressed intentions for legislative improvements. Apart from the initiative on confidential advisors, which is currently being processed by the Parliament, concrete actions are pending. Additionally, questions regarding the potential effects of the envisaged legislative amendments remain to be answered.