How do you arrange a confidential adviser in an SME?

As an employer, based on the Working Conditions Act (arbowet, in Dutch), you must provide a safe working environment. You do this by appointing a 'confidential adviser for unwanted behaviour’, (in Dutch: ‘ongewenst gedrag’). This is a person to whom the employee can talk and report to after an unpleasant experience at work.

1.When do you need a confidential adviser?

If an employee has an unpleasant work-related situation and is unable or unwilling to discuss it (directly) with their manager, they can go to a confidential adviser. Employees may be confronted with undesirable situations in the workplace, such as (sexual) harassment, aggression, or bullying. Certain humour can also be undesirable, for example when it is linked to origin or religion.

2. What does a confidential adviser do?

A confidential adviser is mostly someone who listens to you. Someone to whom an employee can tell their story about undesirable experiences in a safe environment. The confidential adviser can also offer the employee tools for possible solutions. Whether an employee uses it is up to them. It is not up to the confidential adviser to solve the problems. 

If the situation warrants it, a confidential adviser may have additional tasks. For example, helping to submit a complaint, or referring an employee to a specific department or care provider. 

Examples of duties of a confidential counsellor are:

• Supporting employees who are confronted with inappropriate behaviour.
• Advising employees on situations involving inappropriate behaviour.
• Receiving, counselling, advising, and referring the reporter of a complaint.
• Support and guide the reporter in submitting a complaint to the Complaints Committee and the following procedure.
• Providing follow-up care to the reporter of inappropriate behaviour.
• Providing information and education to employees about their role within the organisation.
• Keep an anonymous register of complaints and reports, and report annually to the employer.

3. Is a confidential counsellor mandatory?

Having a confidential officer or adviser is not currently required by law. However, there will be a change in the law, making it required for entrepreneurs with 10 or more employees to have a confidential adviser. 

According to the Working Conditions Act, you are obliged to take care of your staff. You must protect them against physical, psychological, and social complaints. The Working Conditions Act calls this psychosocial workload. For example, stress due to excessive work pressure. Or also stress caused by inappropriate behaviour.

Having a confidential adviser available for your employee can prevent absenteeism. After all, work-related psychological complaints account for 64% of the 6 billion in work-related absenteeism costs in the Netherlands.

4. Does a confidential adviser have an obligation of confidentiality?

Yes, a confidential adviser has an obligation of confidentiality. So, any conversation that an employee has with the confidential adviser is strictly confidential. The conversation is not shared with others. A confidential adviser can only share the information with the express permission of the employee. Internally, the confidential counsellor also has the so-called right of non-disclosure, and is not obliged to make any statements about what has been entrusted to them, unless a crime has been committed. The confidential adviser must also comply with the General Data Protection Regulation (GDPR) privacy rules. 

5. Must a counsellor be from your company?

No, a confidential adviser does not necessarily have to work in your company. An external confidential adviser is often a better fit, especially for small SMEs, such as a bakery or butcher’s shop with few employees. You can then hire a confidential adviser through your health and safety service provider (arbodienst) or trade association. 

Do you opt for an internal confidential adviser? Then that is often an extra role that this person has in addition to their own work. As an employer, you must give the confidential adviser time, training, and budget to perform this extra role as well as possible.

6. Can an employee refuse an internal confidential adviser?

Yes, an employee may refuse an internal confidential adviser. Certainly at smaller companies, simply because fewer people work there, someone may experience problems with the confidential adviser.

Consider this scenario: Harry from administration and Paolo from purchasing have a conflict with each other. Paolo wants to discuss how he can resolve this conflict with a confidential adviser. But Harry is the confidential adviser in the company, in addition to his administration job. So, Paolo needs an external confidential adviser. In this situation, it is wise for Paolo to ask his employer for an external confidential adviser. If there is no permanent external confidential adviser, the employer can hire one this time. 

Another example is if the confidential adviser is a close colleague of the person requesting help and a conflict of interest arises. In this situation, having a second internal or an external confidential adviser is a good alternative.

7. What requirements must a confidential adviser meet?

The confidential adviser has knowledge of:

• Relevant (social) legislation
• Individual and group processes that play a role in inappropriate behaviour or integrity violations.
• The organisational structure and culture. 

In addition, the confidential adviser should have the following qualities:

• Has life experience.
• Can empathise with others.
• Is aware of sensitivities within an organisation.
• Has a balanced personality.
• Can reflect on their own behaviour and that of others.
• Will treat confidential information securely.
• Can cope with
• Is able to act independently.
• Understands how organisations work.
• Has a feeling for internal (power) relations.
• Is accessible and reachable.
• Is prepared to consult regularly with fellow confidential advisers.
• Can communicate excellently when talking and in writing.
• Is a pleasant conversation partner.
• Can advise well. 

A diploma from a relevant course accredited by the LVV (in Dutch) or the CAOP (in Dutch) is not a requirement, but it does demonstrate that someone has the relevant knowledge. 

8. How do I arrange a confidential adviser?

As an employer, you can look for a confidential adviser and post a vacancy internally. Do you have a works council? Then include them in this process. 

You can also (additionally) search for and appoint an external confidential adviser, for example for a situation such as in question 6. You can then hire a professional confidential adviser through your health and safety service provider or sector organisation. Or you can choose an external confidential adviser (in Dutch) yourself because of a specific characteristic, such as location.

9. What does an external confidential adviser cost?

You can calculate the costs of an external confidential adviser in various ways. Most (external) confidential advisers work with annual subscriptions. So, the number of hours used does not determine the rate. An average annual subscription costs between €300 and €1700. The price of the annual subscription in some cases depends on the number of employees. It differs per confidential adviser which tasks are included in a subscription, such as interviews with employees, administration, complaint handling, and raising awareness. For extra tasks, you pay an average hourly rate between €100 and €140. 

You can also opt for billing per hour and make separate agreements about other general tasks, such as raising awareness with employees.

10. How does an employee come into contact with the confidential adviser?

As an employer, you must inform all employees that there is a confidential adviser, how to contact them, and what their availability is. Research (in Dutch) by the Ministry of Social Affairs and Employment shows that the familiarity, availability, and accessibility of a confidential adviser are not always clear. So, communicate this information multiple times in different places. Share the name and contact details of the confidential adviser, for example during onboarding, in the personnel handbook (in Dutch), or on flyers placed in the canteen.

In addition, regularly remind colleagues of the role of the confidential adviser, for example via a post on the intranet or by email. This way you prevent colleagues from missing the opportunity to go to a confidential adviser and feeling helpless.