Optional before, mandatory now
Appointing a confidential counsellor falls under the scope of the Well-being Act of 4 August 1996 and the provisions on prevention of psychosocial risks at work. Under Article 32sexies of the Well-being Act, the employer could choose to designate one or more persons to hold a position of trust. It was mandatory only if the stewards in the Committee for Prevention and Protection at Work (CPPW) demanded this unanimously.
Making the appointment of a confidential counsellor mandatory as a general rule has been the subject of debate for years. It was mainly the employers’ side in the National Labour Council that opposed this, even after Minister Dermagne had proposed it, according to the Council’s opinion no. 2.366 of 3 May 2023). They believed that the occupational health and safety advisor for psychosocial aspects (“Prevention Advisor”), whose appointment is mandatory, is a confidential counsellor par excellence, given this person’s specialized knowledge. In addition, in our opinion, the stewards correctly argued that it’s the trust that the confidential counsellor has gained in the company and in the consensus reached that makes or breaks the counsellor’s success. According to them, it would be pointless to appoint a confidential counsellor for the sake of meeting the statutory obligation to appoint one so that this becomes just another administrative formality.
Apparently, the federal government thought otherwise about this subject-matter, as the bill has been approved, and it will be mandatory in the future to appoint a confidential counsellor in companies with more than 50 workers on their payroll, which is the same threshold for setting up a CPPW. Companies that do not meet this threshold can still appoint a confidential counsellor anyway if this is sought unanimously.
Assigning the external occupational health and safety advisor to take on the role of a confidential counsellor will not satisfy the statutory obligation. The bill states explicitly that at least one of the persons holding a position of trust is a member of the employer’s staff if the company has 50 or more workers on its payroll (even if the Prevention Advisor is part of the internal health and safety cell), or if the company has 20 or more workers on its payroll and the Prevention Advisor is part of the external occupational health and safety body.
Lastly, the bill stipulates that if a company does not appoint a confidential counsellor (because it has less than 50 workers on its payroll), then the internal occupational health and safety advisor can perform the duties of a confidential counsellor. But this does not apply to companies with fewer than 20 workers on its payroll because the employer performs the role of a health and safety advisor.
The confidential counsellor’s duties and obligations
A confidential counsellor’s role is twofold. First, it serves to prevent workplace injuries and illnesses in that this individual can assist the employer in implementing occupational health and safety policy and internal procedures concerning psychosocial risks. These procedures are laid down after the CPPW approves them at their meetings, which the confidential counsellor attends in an advisory capacity.
Second, which is the key role of a confidential counsellor, is being the first point of contact when there is ill-being at the workplace, for example, violence, bullying, sexual harassment, conflicts with other colleagues or superiors, stress, and burn-out. This allows workers, who are dealing with ill-being at work, to tell their story to someone approachable and who are on their side. The confidential counsellor welcomes the distressed employee, listens actively to their issue, and advises them on possible solutions.
An employee can turn to a confidential counsellor and seek informal psychosocial intervention. This is an informal way to find a solution by means of (1) holding talks, (2) having another person at the company, such as a hierarchical superior, the employer itself, an HR manager, intervene, … by asking them to take measures, or (3) attempting conciliation.
The confidential counsellor’s role has its limits, however: he or she may not interfere in subject-matters that fall under the scope of the Prevention Advisor, who continues to be solely responsible for the request (or more comprehensive request) for formal psychosocial intervention.
Rules governing the confidential counsellor
The confidential counsellor performs his or her role completely autonomously and may not be prejudiced in any way by his or her work. A confidential counsellor must be able to exercise his or her duties independently towards the employer, the members of the reporting line, and other workers. The effective performance of his or her role will indeed be jeopardized if the confidential counsellor were to fear retaliation. Moreover, the confidential counsellor is not explicitly granted any protection from dismissal, so it remains to be seen whether the new legislation will change this.
The confidential counsellor is bound by professional secrecy, meaning that he or she is permitted to share information with other people who play a part in the company’s well-being policy if such disclosure is necessary for the proper conduct of the intervention.
The statutory provisions that codify the rules on well-being at work warrant the confidential counsellor’s autonomy. The employer ensures that the confidential counsellor’s role depends on the internal occupational health and safety cell; he or she has direct access to the employer; he or she has the time and space needed to perform his or her duties; he or she has all pertinent information that are necessary for his or her job, and so forth.
Training the confidential counsellor
The employer must do everything necessary so that the confidential counsellor has the skills and knowledge within two years from the date of his or her appointment to perform the job duties. The person appointed must enroll in training courses that are given by government-accredited institutions. The courses cover theoretical and practical skills and knowledge.
Appointing and dismissing a confidential counsellor
The employer must adhere to the procedure prescribed by law for appointing a confidential counsellor. The employer can proceed to appointment after obtaining an approval of it from all stewards at the CPPW. The law therefore requires unanimity. If there is no consensus on the appointment, the employer must seek an opinion from the Inspector at the Well-being at Work Management Body (Inspectie Toezicht Welzijn op het Werk). And for dismissing a confidential counsellor, there is a similar CPPW procedure that must be followed.
Incompatibility
Certain positions within the company may not be combined with a confidential counsellor mandate, as this would jeopardize the confidential counsellor’s requisite autonomy. Therefore, the confidential counsellor may not be a steward who represents the employees or the employer in the Works Council or the CPPW. Nor is he or she allowed to hold a union steward position at the same time.
Moreover, a person may not hold a management position at the company and hold a confidential counsellor mandate at the same time. Those in a management position are “the persons who are in charge of the daily management of the company who are authorized to represent and bind the employer, as well as the staff members, who are immediately subordinate to those individuals if they must also perform daily management duties.” In our opinion, this definition covers only the two highest hierarchical levels in your company.
Other individuals, who are not incompatible according to the law, can be considered for the role. For example, employees who work at the HR department do not seem to be ideal, but the CPPW has full discretion to decide on it.
Conclusion
The name of this position already says it all: a confidential counsellor must be someone whom employees can confide in and who has the know-how to be able to successfully deal with psychosocial issues and to find a solution informally. Being reachable for all members of staff, having the personal and/or social skills, being trusted by staff members (or has already gained their trust), having the appropriate candidate confidential counsellor training: these are some important criteria for appointing someone to this role in the future. This does require some time, however. The draft law has now been submitted to the Council of State for its opinion. Afterwards, it will be implemented and become law. When it enters into force is not yet known, but it would most likely be at the end of the year.
