Preventing harmful behaviour in the workplace

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 responsibility 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 preventive 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.

Please contact us if any of the above has raised further questions with you.