Undesirable behaviour in the workplace regularly makes headlines. According to Employment & Pensions partner Maartje Govaert, despite the increased attention and availability of information, transgressive behaviour still occurs on a regular basis. “Since the #Metoo movement saw the light of day in 2017, it has raised the awareness of this transnational social issue and the sense of urgency to address it. Employers must ensure a working environment that is free from psychosocial pressures such as intimidation, discrimination, bullying, exclusion and transgressive behaviour. Recent sustainability reporting requirements encourage employers to promote social safety. It is up to directors, HR professionals and regulators to ensure that appropriate policies are in place and that the rules are embedded in clear agreements, organisational structures and accountable leadership.”
Risk elements
“As long as people experience excesses in human interactions in their working relations, I will continue to draw attention to this social problem”, says Maartje. She does this through advice, publications and lectures. “Social safety is an important part of the corporate culture and requires a clear framework that includes the reporting infrastructure, the reporting climate and the possibility to talk to a confidential counsellor. But the issue goes far beyond meeting reporting requirements. For example, with the Employment & Pensions team, we regularly discuss risk elements with directors and the supervisory board. These can include systemic issues such as hierarchical culture, power inequalities, ingrained patterns of masculinity or femininity, and the frequent use of temporary contracts.”
She welcomes the fact that the legislator has proposed solutions to promote social safety in the workplace. “This has encouraged directors to discuss the issue, even if it’s not an easy topic for them. In addition to compliance, this discussion should also focus on the rationale behind the rules: the why. Reporting requirements should not replace personal intuition and responsibility. Ultimately, you need to work with the whole organisation to create an open reporting culture where people feel comfortable talking to their manager or the confidential counsellor. Otherwise, things will never move beyond a tick-the-box mentality. Codes of conduct and protocols become paper tigers unless the culture sees real change.
Safeguards and clarity
It is of the utmost importance that the internal checks and balances are clear, as well as the responsibility of each person involved - top down and bottom up. We often see a situation escalate when a complainant feels left out to dry after no one has taken action due to a lack of accountability. A complaints mechanism provides safeguards such as the possibility of reporting anonymously and the confidential treatment of reports. It can also set out the role of the confidential counsellor and the investigation process. This creates clarity for all parties involved: the complainant, the accused and the complaints committee.
This clarity is particularly important when it comes to undesirable behaviour. In practice, we see that reports of undesirable behaviour can escalate unnecessarily. An experienced confidential counsellor may be able to prevent this. They can initiate an informal or a corrective talk, mediation or a group discussion. And if an investigation is to take place, it must be independent, which doesn’t necessarily mean external, and there must be clear agreements about what the person making the report can expect.”
“The Netherlands is the only country in the world that has a government commissioner for sexually transgressive behaviour and sexual violence”, notes Maartje. In April 2022, Mariëtte Hamer was appointed to this position for a period of three years. In May 2023, she published the first version of the Guide for reporting sexual misconduct in the workplace. The guide is a work in progress with input from experts like Maartje as well as people who have been involved in a report. “The first version was about how to handle reports properly. The second edition, which was released in March 2024, adds guidance on developing a strategy for prevention and cultural change in the organisation.
Impact on productivity
Regulators are also increasingly focusing on people, culture and behaviour, and rightly so. The safety of the working environment is key to the productivity and quality of organisations and affects the way employees and managers work. Research by the Royal Netherlands Academy of Arts and Sciences, for example, shows that undesirable behaviour is also a persistent problem in academia. This has a significant impact on the well-being of the people involved, the trust in the organisation’s leaders and the organisation’s reputation. It also has a significant financial impact in terms of employee absenteeism and redundancy costs. In addition, an unsafe culture in universities and medical institutions can have a negative impact on research and research outcomes.
The attention given to this issue makes it easier for employees to talk about unwanted behaviour. It is important that all issues raised and all reports receive the attention and follow-up they deserve.” She says the Employment & Pensions team receives a wide range of questions from (supervisory) board members. “Those concern reporting as well as risk management. How do we know what’s going on in the organisation if nobody comes forward? What do we do if a victim goes to a board member directly? Could our company suddenly find itself on the front pages in connection with undesirable behaviour? Are reports reaching the board at all? Is there sufficient monitoring?”
Risk profile
Maartje often advises directors to draw up a risk profile and supervisory board members to put it on the agenda for discussion with the board. “Look at the weaknesses and see how you can mitigate them as much as possible. Are there teams that aren’t diverse enough? Is there a lack of transparency, or are there teams that are highly hierarchical? Are there power relationships or dependencies between people? To what extent is senior management informed, accessible and available? What about checks and balances? Is management aware of a potentially unsafe culture so that they can make informed decisions? And can those responsible for risk analysis actually make good assessments?”
Her main advice: make sure the whole organisation is involved. “The social pillar is a collective effort. Talk to each other and keep the conversation going. Of course, the tone at the top is important, but this concerns the whole workplace. Not just the victims and the offenders, but everyone. Bystanders who see or identify something need to know that it affects them personally. They too are affected by undesirable behaviour. It is important that employees are held directly accountable for behaviour that deviates from the applicable values and moral standards or crosses the personal boundaries of others. The sooner someone does this, the better. Everyone in the organisation benefits when misconduct is stopped quickly, rather than allowed to fester or escalate.”
Early warning system
“The necessary cultural change will only be successful if it’s gradual, with constant attention to what constitutes desirable behaviour”, she concludes. “A proper reporting procedure and a safe reporting climate can prevent a problem from arising when it’s no longer controllable. By taking the person who reports undesirable or unacceptable behaviour seriously, you create an early warning system. This enables the organisation to investigate and address a problem before it hits the headlines or the regulator comes calling. Above all, it is how you can ensure that such situations do not happen again.”
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