What should an employer do when receiving a report of transgressive behaviour?

In our practice, we see that employers increasingly receive reports of transgressive behaviour. Employers are more than ever aware of the seriousness of this and also of their responsibility for a safe and healthy working environment, which also follows from legislation.

Some employers tend to act in “panic” when receiving a report of transgressive behaviour. We understand that as an employer you want to act quickly, but from a Dutch employment law perspective it is at least as important to also act carefully. What you need to avoid is damaging the reputation of the employee being accused without having investigated the report, which can make it basically impossible for the relevant employee to return to the workplace. Even if the report is subsequently found to be false.

What steps should an employer take when receiving a report of transgressive behaviour?

Step 1 Enter into a conversation with the reporter and the employee being accused

Once receiving a report of transgressive behaviour, the first thing to do is to start the conversation. This should be done with both the reporter and the person being accused separately. Enter this conversation openly (without judgement) and do not act too hastily. We recommend to have these conversations with two people, e.g. an HR manager and the superior, and put the conversation in writing. This can serve as evidence in case of a procedure.

Step 2 Advise the reporter to talk to, for example, a confidential advisor

It is also important to advise the reporter to request a meeting with – for example – a confidential advisor, company doctor or victim support. Ask the reporter what he/she needs. For example, perhaps the employee does not want to work for a while.

Step 3 Investigate the report(s) carefully

It is essential to thoroughly investigate the report. Make sure you do not act hastily, for example, by firing the accused employee immediately or by sending out an internal message to colleagues that the accused employee is temporarily suspended because of a report of transgressive behaviour. The investigation may be conducted by a complaints committee or – for example – by a specialised external investigation agency. When doing so, it is important to formulate the investigation assignment well and concretely. It is possible to agree with the accused employee (if necessary) that he/she will be exempted from work during the investigation.

Step 4 Take appropriate measures

Once the investigation has been conducted, the employer must take measures. Which measures are appropriate, depends of course on the circumstances. For instance, a coaching programme, transfer to another location and – in the worst case – dismissal with immediate effect.

Finally, it is relevant to always keep the reporter and the employee being accused informed of the steps being taken. It is unacceptable for an employee to read in the media that there is an investigation being conducted regarding him or her, without being informed by the employer beforehand. In short: act carefully!

Questions?

Questions concerning transgressive behaviour in the workplace? Feel free to contact Renée Huijsmans or Jaouad Seghrouchni, Attorneys-at-law at our Employment, Employee Participation & Pensions department.