On May 15, 2023, the legislation changed regarding protection against adverse measures in cases of violence, harassment (whether or not with discrimination), and unwanted sexual behaviour at work. This new regulation came into force on June 1, 2023.
The reason for these adjustments is, among other things, a ruling by the European Court of Justice (the “Hakelbracht” case) in which it was decided that the legal protection system as provided for in the federal anti-discrimination laws is insufficient because it does not comply with the obligations imposed by European directives.
We would like to summarize the main changes for you in broad terms.
What should I do as an employer?
- Review your internal regulations concerning psychosocial risks at work. If the definitions of violence, harassment, and unwanted sexual behaviour at work are written therein, they must be adjusted. An example of an addendum (with confidential adviser - without confidential adviser) for the internal regulations can also be downloaded for free via the Premed Extranet.
- The new legislation provides that a report about discrimination at work must also be able to be made within one's own company or institution. Work out how and with whom this can all be done and inform your employees about it. This information should also be included in the internal regulations (addendum psychosocial risks at work).
- Inform your confidential advisers. If we have the email address of your confidential advisers, they have already received communication some time ago about the impact of this on their work. This autumn, the supervision moments for confidential advisers will pay extra attention to the impact of this change on their work. Registration is possible via Supervision moment for confidential advisers | Premed.
For questions, do not hesitate to contact us!
The prevention advisers for psychosocial aspects of Premed
The most important changes.
Protected employees
As of June 1, 2023, a person is protected against adverse measures by the employer when they raise violence or harassment related to a protected ground of discrimination or unwanted sexual behaviour, even outside of the formal procedure. The reporter does not have to be the victim of the discriminatory acts themselves; they can also report facts that have happened to a colleague. Employees who intervene in favour of the alleged victim also enjoy this protection.
Starting point of protection
The starting point of protection is no longer the moment the formal request for intervention or the complaint is received. Protection now begins as soon as the employer becomes aware of the action taken, or reasonably could have been aware of it.
Scope of protection
The protection has been clarified: dismissal or any other adverse measure related to the employee's action or the content of the facts exposed through their action is now explicitly prohibited.
Information to the employer
From now on, employees who take steps regarding facts related to a ground of discrimination can also inform the employer themselves of their actions by providing proof of their report. This proof can be requested within the organisation itself, but also from the external service for prevention and protection at work, an ombudsman's office, etc.
When a request for formal psychosocial intervention is submitted, the prevention adviser for psychosocial aspects will henceforth inform the employer about the type of facts this request concerns: violence or harassment at work, whether or not related to a ground of discrimination, or unwanted sexual behaviour at work.
Impact of abuse of procedures on protection
In the Welfare Act and in the federal anti-discrimination laws, protection against reprisals is explicitly excluded in case of abuse of procedures. An employee who abuses the procedures cannot receive protection compensation but may have to pay damages or be dismissed for urgent reasons. The assessment of this lies with the competent judge.
Definition of harassment at work
The list of discrimination criteria has been removed from the definition and is included in a separate article in the law. The list of protected discrimination criteria has also been expanded. These criteria include: age, marital status, birth, wealth, belief or philosophy of life, political conviction, trade union conviction, language, current or future health status, a disability, a physical or genetic characteristic, social origin, nationality, so-called race, skin colour, origin, national or ethnic descent, sex, sexual orientation, gender identity, gender expression, sex characteristics, pregnancy, childbirth, breastfeeding, motherhood, adoption, medically assisted reproduction, sex change, fatherhood and co-motherhood.
Definition of unwanted sexual behaviour
This definition has been changed and is now the same as that found in the Gender Act, namely: any form of unwanted verbal, non-verbal or physical behaviour with a sexual connotation that has the purpose or effect of violating a person's dignity, particularly when a threatening, hostile, offensive, humiliating or hurtful environment is created. (Where the word 'bodily' from the old definition has been replaced by 'physical'.)
More information
- The explanatory memorandum (PDF, 5.66 MB);
- The coordinated text of the amended articles of the law of 4 August 1996 concerning the well-being of workers in the performance of their work. (PDF, 207.6 KB)
- The coordinated text of the amended articles of title 3 of book I of the code on well-being at work. (PDF, 140.96 KB)
