On 1 July 2019, the Dutch Association for Occupational Health and Safety (NVAB) published the guideline 'Conflicts in the Workplace'. The aim of the guideline is to give guidance to company doctors in preventing conflicts in the workplace, and in rendering advice to employers and employees on how to come to constructive solutions should conflicts arise. The NVAB guideline provides for protocols that are evidence based instead of practice based and sets out a schedule of the steps company doctors should follow. This makes the guideline a useful tool for employers as well.
In Dutch employment law, a sick employee is typically entitled to continued payment of salary for 104 weeks. While both employers and employees have various statutory obligations in case of employee illness, from a cost perspective employers are keen to shorten the employee's period of illness and absence. At the same time, employers are aware that failure to comply with statutory obligations can result in a sanction where the employer is obligated to pay (at maximum) an additional third year of sick pay. Sometimes the instructions of the company doctor about whether an employee is able to reintegrate can lead to confusion or questions. This may especially be the case if the employer has the impression that the employee has called in sick after being confronted with feedback about performance or redundancy. In these cases, the NAVB guideline provides tools for an employer to verify the working method of the company doctor. The company doctor is expected to recognise the phases of escalation of a conflict (e.g. medical, mental health, harassment, etc.) and advise and initiate appropriate interventions.
Different tools for different situations
The NVAB guideline makes a distinction between situations where the employee has not called in sick and where the employee has called in sick during a conflict in the workplace.
Situation 1: conflict in the workplace
Based on the guideline, the employee who faces a conflict in the workplace can consult the company doctor within the framework of the working conditions consultation hour or on referral from a general practitioner or primary psychologist.
In the event of a conflict in the workplace, the company doctor will draw up a problem diagnosis, consisting of (a) conflict diagnostics and (b) medical diagnostics.
In the case of conflict diagnostics, the company doctor (among other things) will determine:
i. what type of conflict is involved. The NVAB guideline lists several types of combinations of sickness and conflict:
• a conflict between an employee and one or more colleagues;
• a conflict between an employee and a manager;
• a conflict between an employee and the organisation; and
• a conflict based on bullying, sexual harassment, aggression or violence, either verbal or physical.
ii. the company doctor then analyses the phase of the conflict (i.e. its severity);
iii. the conflict-management style of both parties (e.g. avoiding, permitting, forcing, compromise, etc.) is also considered; and
iv. the company doctor examines conflict and safety within the organisation, such as interrelationships in upper management, leadership style and ambiguities in job functions and responsibilities.
The second part of the problem diagnosis focuses on medical diagnostics. This is where the company doctor assesses:
i. the impact of the conflict on the health of the employee and whether there is over work or burnout. The NVAB guideline provides an overview of factors where burnout can be assumed as well. Of course, the employer should not render a diagnosis, but the overview does give the employer some insight into whether there could be a burnout situation; and
ii. whether there are certain medical disorders that affect the conflict in consultation with the occupational physician.
If the company doctor is of the opinion that the employee is unable to work, he will recommend sick leave.
Situation 2: sickness and a conflict in the workplace
In the situation where an employee has reported sick and is likely to have a conflict in the workplace, a problem diagnosis will be conducted in the same way as described above. If the employee has reported sick and there is indeed a conflict in the workplace, the company doctor will take into account the temporary factors of the illness, which hinder the handling of the conflict or necessitate postponement of conflict resolution, and will then give advice on reintegration.
Possible interventions under the guideline
Based on the problem diagnosis as described above and depending on the phase of the conflict, possible interventions are defined in the NVAB guideline:
- In Phase 1 parties have only a difference of opinion, or the conflict is just beginning. In this phase, the company doctor guides the parties separately in conflict management. The company doctor enters into dialogue with both employer and employee, and encourages them to enter into or remain in a constructive and respectful dialogue with each other. In the case of an extreme conflict-making management style (see above), the company doctor can call in an independent discussion leader. However, if the problem is not a case of incapacity for work, but of high emotions, the company doctor can then advise a "time out" of a maximum of two weeks;
- In Phase 2 the positions have hardened. It is more than a difference of opinion between the parties. In this phase, the company doctor can recommend the appointment of an independent moderator, which can be done internally, such as a HR-employee or a fiduciary;
- In Phase 3 the conflict has seriously escalated. In this phase, the company doctor can recommend the assistance of an independent third party from outside the organisation (e.g. a mediator);
- If the conflict is between the employee and the organisation, the company doctor will refer the employee to a confidential counsellor. The company doctor will then inform the employee about the whistleblowing policy of the employer and the government;
- In case of bullying or sexual harassment, the company doctor will follow the internal policy of the employer.
In each case, the employer should verify whether the recommended intervention is suitable for the situation.
The NVAB guideline recommends conflict prevention as well. In order to prevent a conflict, the employer should take into account that the company doctor is entitled to advise the employer about conflict management, while the company doctor also has the possibility to agree upon arrangements with the employer.
Course conflict management
If there is a high risk of conflict, the company doctor can advise the employer to follow training courses in "conflict management". The company doctor will take employee reports into account, whether a policy regarding undesirable behaviour, work and resting times are in place and whether environmental factors increase conflict risks. In principle, it is recommended to follow the advice of the company doctor and consult training courses in conflict management. However, if for any reason the employer does not agree with the company doctor's advice, it is recommended that the employer substantiate (i.e. document) the reason for not following the training course in conflict management.
Arrangements with the employer
Sick leave and a salary freeze (due to the fact that the employee is not acting in line with reintegration obligations) can contribute or play a role in the escalation of the conflict. This is why the company doctor can make agreements with the employer about the continued payment of wages in the event of conflicts in the workplace. It should be noted that the employer is not obligated to agree upon such an arrangement.
With this guideline, the employer has a handbook to verify the actions of the company doctor. Nevertheless, there are certain concerns about this guideline. Namely, quite a lot is expected of the company doctor. One could raise the question whether the company doctor has sufficient time to analyse conflicts as prescribed in the guideline. Since having only one conversation with the employee may not be enough for rendering a decision, in the context of hearing both sides of the argument, it seems necessary to talk to the others involved as well. Questions could also be raised about the role of the company doctor in Phase 1. The guideline prescribes meeting separately with parties. However, in practice the best way to study a conflict is if the parties are interviewed together. In addition, regarding the role of experts in Phase 2: the question is whether they are suitable. After all, a fiduciary has no mediating role at all. Neither does the HR-employee, who will advise the employer at some point on the next steps to be taken in case of an unresolved conflict. In other words, the employer is still expected to be on top of things and to remain critical since it is the employer who is ultimately responsible for the reintegration process.
The NVAB guideline is a tool for the employer to monitor the actions of the company doctor. But precisely because a lot is expected of the company doctor on the basis of this tool, the employer needs to be extra critical of the reintegration process. After all, the employer is and remains ultimately responsible for the process taken when an employee is absent.
For more information on how to react when receiving advice – particularly unfavourable advice – from the company doctor and how to handle these situations, contact your regular CMS advisor or local CMS experts.