Transgressive behavior is a current theme within many organizations. Well-known examples are The Voice of Holland, AFC Ajax and Volt. How did it get this far and, more importantly, how can transgressive behavior be prevented? In this article we explain how (as much as possible) transgressive behavior in the workplace can be prevented and what an employer can do if a report about such behavior is made within the organisation.
Unacceptable behavior
But first, what is transgressive behaviour? The answer to that question is difficult. We speak of transgressive behavior when a person goes beyond the boundaries of another person and thereby inflicts damage on that other person on a physical, mental or emotional level. This can manifest itself in sexual intimidation or abuse, but also in bullying, discrimination or aggression. It is very important here that the perception of the “recipient” is largely decisive and not the intention of the “sender”.
Transgressive behavior can occur anywhere: at sports clubs, at talent shows and in politics. In this article we only focus on the question of what is needed to prevent transgressive behavior in the workplace as much as possible and, if it occurs, how you should deal with it as an employer.
Duty of care
Preventing transgressive behavior is part of the employer’s statutory duty of care. After all, the employer must ensure a safe and healthy working environment. The law even specifically stipulates that an employer must pursue a policy aimed at preventing, or at least limiting, the “psychosocial workload” of its employees. This will be the case, among other things, if undesirable behavior (such as sexual intimidation, aggression, violence, bullying and work pressure) causes physical, psychological and/or social complaints among employees.
If employees are (can) be exposed to psychosocial work load, the risks must be mapped out in the mandatory risk inventory and evaluation. This also includes an action plan that describes the measures the employer will take to prevent and/or limit psychosocial workload. The employer must also provide information and training to its employees about this.
If the employer does not fulfill its duty of care, the employer can be held liable for the damage that an employees as a result. The Labor Inspectorate can also impose a fine. As has become clear from the reporting in the news and the (social) media, there is also a risk of reputational damage for the employer that should not be underestimated if it appears that transgressive behavior is not handled carefully within the organisation.
Incidentally, employees themselves also play a role in ensuring a safe and healthy working environment: they must ensure their own safety and the health of the other persons involved, for example by identifying and addressing each other about undesirable comments or behaviour. The employer can also encourage this, for example by providing information, setting up a reporting procedure and pursuing a clear policy.
Regulations for the prevention of transgressive behaviour
In order to be able to properly implement the duty of care and to prevent transgressive behavior as much as possible, it is in the first place important that employees know what behavior is and is not allowed within the organisation. Barring very serious forms of misconduct, an employer cannot hide behind the statement “ that it had to be clear to everyone what is and what is not accepted ”. It is therefore sensible to draw up regulations with clear and adequate rules about transgressive behaviour.
In these regulations, the employer can include what is meant by transgressive behaviour, which specific boundaries and rules of conduct apply within the organisation, how transgressive behavior is dealt with within the organisation, where employees (and other involved parties) can report transgressive behaviour, in what way and within what terms the report will be investigated and what sanctions there are for transgressive behaviour. Depending on the nature and seriousness of the transgressive behaviour, this can vary from a (written) warning to a dismissal.
In addition, it is at least as important to create a culture within the employer’s organization where transgressive behavior is not tolerated and where people hold each other accountable. It is precisely for this reason that it is important to regularly point out the regulations to employees (for example during meetings, on the intranet and in newsletters), to take the regulations very seriously and also to enforce them strictly.
Reports and complaints
Employees should not feel inhibited to report transgressive behaviour, for example because of the negative consequences that the report could have. Employees benefit from an environment in which reporting can be done safely and confidentially and reports are taken seriously.
For this reason, it is advisable (but not yet legally required) to appoint a confidential counselor to whom employees can turn. The confidential counselor is there to listen, support and advise. An expert confidential counselor can also advise the employer.
In many cases it is preferable that the confidential counselor is an external and independent person. This keeps the threshold as low as possible and prevents conflicts of interest. It must be clear to employees how they can reach the confidential counselor and they must also be able to contact them within a reasonable time.
Research
It is also important that any reports of transgressive behavior are properly and extremely carefully investigated. The risk of failure is high. This obviously applies to the person who is being investigated (the accused), but of course also to the reporter(s) and/or the colleagues to be interviewed in the investigation.
Caution is therefore advised. The employee who is the subject of the investigation must be properly and fully informed about his rights and the content of the investigation. For example, the employer – as a good employer – must inform the employee (preferably in writing) why the investigation will be conducted, why certain investigation methods will be used and what the scope of the investigation will be. In addition, the employer must meet the expectations raised with regard to the investigation and similar cases must be treated equally. The employee must be given the opportunity to tell his side of the story and respond to the research results. If the investigation may result in severe sanctions, such as dismissal,
However, the position of the reporter(s) and any (possible) witnesses and victims to be heard also deserves special attention in the investigation. Good research benefits from a climate in which involved employees feel safe enough to tell their story. Employees are in principle obliged to cooperate with the investigation, but could decide to keep quiet for fear of adverse consequences (such as not renewing a fixed-term employment contract, withholding promotion opportunities, rejecting requests for leave, etc.). and/or not telling the full story. It is therefore advisable – also outside the investigation and in the regulations – to emphasize that making a report (in good faith) or cooperatingto the investigation, will not adversely affect the employee’s position.For this reason, too,
Finally, the investigation can be conducted internally, but in some cases it is wiser to have the investigation conducted by an independent, external party. Of course, an external investigation must also be carried out carefully and the employer remains responsible for this.
Closing
In short, it is important for an employer in the context of the duty of care to have clear regulations to prevent transgressive behavior, to clearly propagate and enforce this. There should be a secure channel to report any instances and such reports should be properly and diligently investigated.
Good to know: the Dutch Labor Inspectorate offers a “self-inspection” with which employers can identify the risks in the area of work pressure and undesirable behavior within their organisation.
If you need help drafting a policy to prevent transgressive behavior, or if you have a report in this area, please don’t hesitate to contact us.
For further information, please contact:
Ron Andriessen , Partner
Labré lawyers, Amsterdam
e: ln.erbal@nesseirdna.nor
t: +31 20 3052030
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