Preventing workplace psychosocial hazards: the confidential counsellor

Since 1 September 2014, extensive changes have been brought in to the rules on violence, bullying and sexual harassment in the workplace. The aim is to put in place a general framework for preventing workplace psychosocial hazards.

Two intervening parties play a particularly important role in the prevention of workplace psychosocial hazards:

• on the one hand, the psychosocial hazards prevention adviser;
• and, on the other hand, the confidential counsellor.

If workers consider that they have sustained psychological harm, which may also be accompanied by physical harm, arising out of workplace psychosocial hazards including violence, bullying and sexual harassment in the workplace, they can appeal to the psychosocial hazards prevention adviser or to the confidential counsellor if there is one.

This Infoflash briefly reviews the rules regarding the designation and the status of the confidential counsellor.

Reminder! The employment regulations must be adapted by 28 February 2015 and must include the following:

• the procedures which are directly accessible to the worker who considers that he has sustained harm;
• the contact details of the psychosocial hazards prevention adviser or the service for prevention and protection at work for which this adviser carries out his duties, and the contact details of the designated confidential counsellor if there is one.

=> Order the appendix to the employment regulations containing these new provisions.

The employer is not obliged to designate one (or more) confidential counsellor(s) (= optional designation), except if all the members representing the workers on the committee for prevention and protection at work (CPPT) or, failing that, the trade union delegation or, failing that, the workers request him to do so.

The employer designates the confidential counsellor after the prior agreement of all the members representing the workers within the CPPT or, failing that, of the trade union delegation or, failing that, of the workers.

If no prior agreement is reached and before he takes a decision, the employer must seek the opinion of the Directorate of the Inspectorate of Well-being at Work provided that the terms laid down by the Royal Decree of 10 April 2014 on the prevention of workplace psychosocial hazards are observed.

If he does not follow the opinion of the Directorate, the employer notifies the CPPT or, failing that, the trade union delegation or, failing that, the workers of the reasons for doing so.

NB!  

• If the employer only appeals to a psychosocial hazards prevention adviser who is part of an external service for prevention and protection at work, at least one of the confidential counsellors must be part of the staff of the employer, if he employs more than 20 workers.
• Under certain conditions, the duties of the confidential counsellor may also be carried out:
  • by the psychosocial hazards prevention adviser;
  • by the prevention advisor of the internal service for prevention and protection at work, except in companies employing less than 20 workers where the position of prevention advisor is occupied by the employer, and except in case the person concerned or the CPPT does not agree (or, failing that, the trade union delegation or, failing that, the workers). 
• The confidential counsellor should not suffer any prejudice as a result of his/her activities; he/she enjoys special protection in case of removal from his/her post.

Training

The employer must take all necessary measures to ensure that the confidential counsellor, within 2 years following his/her appointment, has the skills and knowledge which are required to carry out his/her duties, particularly in the field of:

• the well-being policy within the company;
• the prevention of workplace psychosocial hazards;
• interviewing techniques;
• the handling of problem situations.

Incompatibilities

The confidential counsellor may not:

• simultaneously occupy a position as a prevention adviser with responsibility for healthcare in the workplace;
• be employer's delegate, (candidate) staff's delegate on the works council or the CPPT, nor be part of the trade union delegation when he/she is part of the staff of the company where he/she occupies a position;
• be part of the management staff; "management staff" is understood to mean persons responsible for the day-to-day management of the company, who are authorised to represent and bind the employer, and the members of staff, who are directly subordinate to these persons if they also carry out day-to-day management tasks.

The person who was designated as confidential counsellor before 1 September 2014 in application of the Royal Decree of 11 July 2002 on the protection against violence, bullying and sexual harassment at work and of the Royal Decree of 17 May 2007 on the prevention of the psychosocial load caused by work, including violence, bullying and sexual harassment in the workplace and who has already taken training, may continue to occupy the position of confidential counsellor even when this training does not meet all the required conditions. However, if this person has not taken any training before 1 September 2014, he/she may only continue to occupy the position of confidential counsellor under certain conditions.

The person who was designated as confidential counsellor before 1 September 2014 may continue to occupy this position even if:

• he/she is employer's delegate, (candidate) staff's delegate on the works council or the CPPT or part of the trade union delegation (when he/she is part of the staff of the company where he/she occupies a position); 
• he/she is part of the management staff.

To be continued..., watch this space!

Sources: Act of 28 February 2014 supplementing the Act of 4 August 1996 on the well-being of workers in the performance of their work as regards the prevention of psychosocial hazards at work, including violence, bullying and sexual harassment in the workplace, Moniteur belge of 28 April 2014; Royal Decree of 10 April 2014 on the prevention of workplace psychosocial hazards, Moniteur belge of 28 April 2014; in French on the website of the FPS Employment, Labour and Social Dialogue, heading "Thèmes/Bien-être au travail/Charge psychosociale" (www.emploi.belgique).  

Author: Catherine Mairy

20/08/2015