Minervahuis 1 Rotterdam
By mr. Antoinette van Cappelle – Ijsseldijk van Cappelle Advocaten

Undesirable behaviour – serious business!

Using our daily employment and dismissal law practice, I have the following top three tips for employers.

We come across it everywhere - accusations about transgressive behaviour. What ‘used to’ perhaps still be tolerated, is not today. This requires an awareness on the part of both employers and employees that certain behaviour may be offensive and therefore unacceptable.

Incidentally, this is not just about ‘me-too’ behaviour; bullying, discrimination and (sexual) harassment also fall under undesirable behaviour that may be perceived as undesirable.

If undesirable behaviour occurs, it does not automatically lead to dismissal; it is important that it is known to the employee that this behaviour will not be tolerated.

What does this mean for you as an employer or employee?

Policies and complaints procedure, appointing an (external) confidential adviser

Employers have a duty under the law to ensure a safe working environment. This also means that it is wise to adopt a code of conduct that clearly states what the company understands by cross-border and undesirable behaviour. It should also be clear where an employee can go if confronted with cross-border or undesirable behaviour. This can be laid down in a complaints regulation, which also includes the possibility of turning to an (external) confidential advisor - mentioned there. It should be clear what happens to the complaint, and whether it will be treated confidentially.

And then? How to handle a complaint from an employee

If the employee decides (after consulting the confidential adviser or not) to make an official complaint, the employer must then take action. This usually runs along the following lines: 1. what exactly is the content of the complaint and 2. can the situation be resolved by discussing the complaint with the accused.

Depending on the degree of specificity of the complaint, the employer may decide to investigate. This is obviously not necessary if the accused acknowledges the behaviour complained of, or if the complaint is so vague that investigation will be pointless.

Hearing and rebuttal

During the entire process of complaint handling, the employer should not only have an ear for the complainant. The accused will also have the right to give his or her views on the complaint (hearing and rebuttal); it is wise to record this carefully.

Sanctions in case of transgressive behaviour

If the complaint is well-founded, this will (immediately or eventually) lead to an employment sanction. Consider dismissal on grounds of (serious) culpability, or on grounds of a permanently disturbed working relationship. A written warning and/or a course of improvement may be necessary before successful dismissal measures can be taken. Instant dismissal may also be a possibility. What the right measure is will depend on all the circumstances of the case. Precisely because these sanctions can have far-reaching consequences for the employees concerned, it is important to carefully consider which steps to take.

Prevention is better than cure

Employers can prevent a lot of problems by keeping an eye on psychosocial workload and designing policies accordingly. Not only by drawing up internal rules of conduct, but also by appointing an (external) confidential advisor. The person of trust is meant to take care of and guide an employee who experiences undesirable behaviour. In many cases, the use of an (external) confidential advisor leads to a workable solution without escalation.

So please - employer and employee - take good advice, because this is indeed serious business. This may be evident from the many published court rulings - two of them can be found here:

We are happy to assist you (employer or employee) in this regard.

Employers who are not our clients can also engage us to act as external confidential adviser if they wish.

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