Harmful behaviour in the workplace can occur at any level and at any moment – be it by co-workers, supervisors, employers or clients. Going to court is often the last resort. However, a lot can be done to prevent this from taking place in the first place.
Responsibility lies with the employer to prevent damage to his/her employees caused by e.g. (sexual) harassment, aggression, violence, bullying and unreasonable work pressure, by taking all reasonable measures.
The duty of care
Considering the hierarchical inequality between employee and employer and the employer’s power to influence working conditions, the Dutch legislator imposes a legal duty of care upon the employer. This duty of care entails the employer’s responsible for creating a healthy work environment, eradicating degrading behaviour at the work place, at all levels, and at all times.
The duty of care:
- requires both employer and employee to be reasonable and fair in their professional relationship.
- specifies the employer’s responsibility for giving clear instructions whilst taking all reasonable and necessary measures to prevent suffering or injury of an employee;
- sets out the employer’s liability for any damage suffered by the employee whilst performing work-related activities.
- stipulates the employer’s responsibility to carry out a preventative policy. In cases where such policy fails, the employer is under obligation to restrict the consequences of a too ‘heavy’ work load and psycho-social stress.
Case law further shows that a breach of duty of care may lead to the employer’s liability for material and immaterial damages and high compensation during termination proceedings. This is the case even when it is the employee who has put an end to the professional relationship by handing in a resignation.
Preventing harmful behaviour – what employers need to know
To prevent toxic situations and for optimum results, the employer has to take certain measures:
- draw up a prevention plan (create awareness with regard to potential consequences of damaging behaviour, e.g. remarks/jokes);
- draft a complaint regulation, including clear sanctions (like suspension);
- appoint a trustee;
- inform the employees about the policy on a regular basis;
- consequently uphold the policy by imposing sanctions;
- deal with complaints carefully (confidentiality!) and in a timely manner, not only in relation to the plaintiff/complainer but also in relation to the accused;
- draw up an inventory of the risks of the workplace.
Employees, keep in mind
For employees, there are certain things to keep in mind:
- be aware that the employer is obliged to investigate the complaint seriously and to take all reasonable and necessary measures;
- address and discuss any negative behaviour with the manager/employer/trustee and/or the bully;
- file a complaint according to the complaints regulation, if such a regulation exists;
- file for material and immaterial damages, if the employer has failed to comply with his or her duties.
Godelijn experienced an international upbringing and education as an expat child living in Africa and England. Back in The Netherlands, she studied law at the University of Utrecht (1990). She then embarked on her legal career as a lawyer by working 10 years for the well-known law firm of ‘Wladimiroff en Spong Advocaten’. In 2000 she joined GMW lawyers as a partner and is the head of the Labour law and Pension section.
Godelijn specialises in international employment law and has extensive experience in dealing with both non-contentious and contentious international employment matters including (collective) redundancy packages and dismissal. She works for both companies and individual employees, enabling her to keep an open mind to both sides of a case. Naturally she helps her clients when a problem has arisen, but prefers to act before an escalation has taken place. Advice on a fair Human Resource policy is an essential part of her work.
Godelijn Boonman is considered to be the undoubted employment specialist for the expat community because she is bilingual, has a large international clientele and a wealth of experience in international employment law matters. She is therefore frequently asked to be the key note speaker at international seminars.
Godelijn has a keen interest in the international community and has been a member of the advisory board of ACCESS and the Women’s Business Initiative International since its beginning.