There is still a lack of quality guarantees for confidential advisers.Image ANP / Cultura Images RF

    The House of Representatives will soon discuss the private member’s bill that obliges employers to give employees access to a confidential advisor when they are confronted with sexual intimidation or other undesirable behavior at work.

    About the authors:

    Mirjam Decozo is a lawyer and chairman of complaints committees. adear Kuiper is a business manager. Both are specialized in tackling sexual harassment and other undesirable behavior at work.

    After the broadcast of BOOS at the beginning of this year about sexually transgressive behavior on The Voice of Holland, we argued in a widely signed petition for better legislation to tackle sexual harassment at work. There are currently no legal frameworks for handling reports and complaints in this area. Part of that better legislation is giving employees the right to access a good confidential advisor who helps, supports and advises them on possible solution processes.

    Independent

    Unfortunately, the current proposal lacks quality guarantees for confidential advisers. The initiators of the bill do write that confidential counselors must be independent and expert, but they do not specify any criteria for this.

    The demand for independence is aimed at avoiding double hats. The confidential counselor must be an employee who comes to him/her and be able to advise without taking into account the interests of the organization and/or the person being complained about.

    A managerial position is therefore incompatible with that of a confidential adviser, nor is an HR position or membership of the works council (OR). In practice, however, it appears that employers often see the combination function with, for example, HR as an advantage. The necessary confidential counselors themselves also believe that they can properly separate and distinguish those roles.

    In our experience, the consequence of this is that the confidential counselor is often not approached, because there is no confidence in his or her independence. This also creates the wrong impression that there are no undesirable behaviors in the organization. Clear criteria about independence are therefore not an unnecessary luxury.

    Expert

    In addition, it is important that confidential counselors have the right expertise. The bill does not require a confidential counselor to have completed a training course for this purpose.

    Confidential counselors must, among other things, know exactly what help an employee who calls on them needs, and which solution process is appropriate. For example, they must be able to assess in which situations mediation can be successful, and when a formal investigation and/or report is indicated.

    Research commissioned by the Ministry of Social Affairs and Employment shows that 73 percent of the confidential advisers have not followed any training. If you lack the right knowledge and skills as a confidential counselor, you can inflict even more damage on someone who has already been damaged by transgressive behaviour. Training, with an independent test and compulsory refresher training, must guarantee the quality of the confidential advisers.

    The Voice

    A second shortcoming of the current bill is that it creates the impression that appointing a confidential counselor meets the requirement to conduct a policy against sexual intimidation, bullying and discrimination. From the cases at The Voice we know, however, that a clear framework of standards for the handling of reports and complaints is also of great importance.

    It must be clear how a complaint should be investigated and assessed. For example, if a good conversation with the person being complained about does not help, or if that is not an option because the complaint is too serious. In that case, an opinion on its merits is necessary in order to be able to take further measures.

    Our practice shows that many confidential counselors who interview employees still advise against submitting a formal complaint. After all, they doubt the independence and/or quality of the complaint investigators. In addition, there is no guarantee that complainants will be protected from disadvantage.

    cover up

    ‘Who talks, goes,’ said police officers faced with peer discrimination, in the high-profile documentary The blue family by Meral Uslu. Without a sound legal framework of standards for the handling of reports and complaints and without a great effort from (top) management to protect employees who complain against disadvantage, there is a risk that confidential counselors will act as a cover-up.

    The current bill needs to be supplemented, focusing on criteria for the independence and expertise of confidential counsellors. At the same time, we must also vigorously pursue the integrated approach to sexual harassment at work at the political level, as proposed in the National Action Plan on Sexual Behavior and Sexual Violence. The forthcoming ratification of the ILO Convention C190 on the Elimination of Violence and Harassment in the Workplace offers a good opportunity to do so.

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