Is a confidant mandatory?

A confidant is someone to whom employees of an organisation can turn if they experience problems in dealing with employees, such as aggression, bullying, discrimination or (sexual) harassment, or if they suspect that something is not right (integrity issues). Consider, for example, fraud, theft or misuse of company assets. But is having an internal or external confidential advisor mandatory? And why is it important to have one?

Parliamentary initiative bill adopted: confidential advisor mandatory for organisations with more than 10 employees

In late May 2023, the House of Representatives passed a law making it a legal requirement for organisations with more than 10 employees to appoint a confidential advisor. The bill now goes to the Senate. It is not yet known when the law is to take effect. However, an earlier bill of amendment did make it clear that a phased application of the law is possible, giving smaller organisations more time to properly arrange the appointment of a confidential advisor. Exactly what (quality) requirements a trustee must meet is still to be worked out in lower regulations.

There are also some laws that require organisations to take measures against undesirable behaviour in the workplace, such as the Working Conditions Act and the House of Whistleblowers Act.

Unwanted manners in the workplace

Every employer is obliged under the Occupational Health and Safety Act to have a PSA policy that focuses as much as possible on optimal psychological-social working conditions, including preventing cross-border behaviour in the workplace.

Legal requirement for every employer is:

• A Risk Inventory & Evaluation (RI&E).
• A Plan of Action
• Review of both by certified occupational health and safety service or core expert depending on number of employees (> 25 employees)

Integrity issues in the workplace

The House of Whistleblowers Act was replaced by the Whistleblower Protection Act with effect from 18 February 2023. The changes are as follows:

Organisations with more than 50 employees must adapt their internal procedure for reporting wrongdoing to the new law by 17 December 2023. Organisations with more than 250 employees must already comply with this.

Organisations with fewer than 50 employees will also have to draw up an internal reporting procedure as a result of the EU directive, if they operate in the fields of financial services, products and markets, prevention of money laundering and terrorist financing, civil aviation, maritime labour and port state control, and offshore oil and gas activities.

Why confidant mandatory?

A confidant can help prevent undesirable behaviour and intergovernmental issues, provide emotional support to employees who have been victims of undesirable behaviour, improve working conditions and reduce absenteeism. A confidant can help make undesirable and desirable behaviour negotiable and thus contribute to improving working conditions for and the well-being of employees.

Mandatory appointment of a confidential advisor is not only good for the individual employee, but also for the organisation as a whole. A confidant can help create a safer working environment, prevent legal problems and reputational damage, improve the company’s culture and image, and meet legal obligations.

Anticipating likely legal requirement of a trustee?

Even though having a confidential advisor is not currently mandatory for organisations with fewer than 10 people, it is recommended to appoint an (external) confidential advisor now. Due to recent events such as those at The Voice, NPO, Ajax, the House of Representatives, etc, many organisations are currently appointing or considering appointing an (external) confidential advisor.