News Update Employment & Pensions
25 October 2022
A recent survey by Dutch trade union federation CNV shows that a large proportion of working women in the Netherlands experience sexual harassment in the workplace to a greater or lesser extent, varying from sexually charged comments to physical forms of sexual harassment.A series of initiatives have recently been undertaken to tackle sexual harassment more effectively.
Bill amending the Working Conditions Act to make confidential counsellors mandatory
In 2020, the Dutch green party GroenLinks published a private member’s bill aimed at eliminating inappropriate conduct in the workplace and creating a safe working environment for workers. In response to critical advice from the Dutch Council of State, several points in the explanatory memorandum were clarified and better substantiated. The debate concerning the bill was shelved for some time but is now back on the agenda of the House of Representatives.
The bill's purpose is to amend the Dutch Working Conditions Act (Arbeidsomstandighedenwet) to make it mandatory for employers to appoint a confidential counsellor, whether in-house or external, and so give all workers access to confidential counselling.
The bill furthermore contains a proposed legal description of the duties of these confidential counsellors, who will also have protection against dismissal that is similar to that enjoyed by members of works councils. Another rule is that the works council or the employee representative body must approve the choice of confidential counsellor.
Bill on sexual offencesVarious laws contain prohibitions on sexual harassment in a specific context, for example the Dutch Equal Treatment Act (Algemene wet gelijke behandeling) and the Dutch Equal Treatment of Men and Women Act (Wet gelijke behandeling van mannen en vrouwen). Sexual harassment in the workplace is also prohibited under the Dutch Civil Code, and the duty of care of employers under the Dutch Working Conditions Act includes the duty to prevent sexual harassment in the workplace.
So far, sexual harassment has not been made a criminal offence under the Dutch Criminal Code. However, the Dutch Criminal Code does contain several provisions that potentially cover certain forms of sexual harassment, for example insults, threats, acts of indecency, stalking and sexual assault. It is not always possible to bring a prosecution in response to such acts. This is the case where, for instance, the sexual advances consist of forms of communication that are not insulting, or of conduct such as touching that, while not infringing on the physical or sexual integrity of another person, or only doing so to a limited extent, potentially constitutes sexual harassment because of its nature, substance or context.
On 11 October 2022, the Dutch Minister of Justice sent a bill on sexual offences to the House of Representatives. Among other details, that bill expands the possibilities to take action under criminal law by making sexual harassment, whether online or offline, punishable as an offence in its own right.
Making sexual harassment an offence under the Dutch Criminal Code will also introduce a stricter standard regarding sexual harassment in public, which is unacceptable even if it involves less of a physical component, or even none at all. If that line is crossed, this frequently occurring disturbing behaviour may trigger criminal prosecution.
The plan is for the new law to come into force in 2024.
Appointment of Government Commissioner on Sexually Transgressive Behaviour and Sexual ViolenceLastly, Mariëtte Hamer has been appointed as independent Government Commissioner on Sexually Transgressive Behaviour and Sexual Violence. Her job is twofold: to provide advice, both on request and at her own initiative, on dealing with sexually transgressive behaviour and sexual violence, and to set in motion a social debate to bring about a change in culture.
In a joint letter, the Ministers of Education, Culture and Science, of Social Affairs and Employment, of Justice and Security, and of Health, Welfare and Sport outline the contours of a national plan of action to take decisive action against sexually transgressive behaviour and sexual violence. Mariëtte Hamer and her staff will advise on shaping and implementing the national action plan.
The ministers responsible are expected to publish the national plan of action by the end of 2022.