THE LEGAL (AND OTHER) POSSIBILITIES DUTCH EMPLOYERS HAVE TO PREVENT AND SOLVE WORKPLACE BULLYING: AN EXPLORATIVE STUDY.
Prevention better than a cure?
Master thesis, MSc Human Resource Management University of Groningen, Faculty of Economics and Business
January 2017 Sanne Dellemijn Student number: 2210487 Herman Modedstraat 38 3553 VL Utrecht Tel.: +31 (0)657658239 E-mail: s.c.dellemijn@student.rug.nl Supervisor
Prof. mr. dr. E.M. Kneppers-Heijnert
Second supervisor
Abstract
In the Netherlands about half a million people were bullied at their work in 2015. This workplace bullying has severe consequences for the bullied employees, their colleagues and the employer. The Dutch law obligates employers to have a policy to prevent or minimize the effects of workplace bullying, but a lot is unknown about how to manage workplace bullying effectively. This qualitative research explores the field of workplace bullying in the Netherlands by a literature review and interviews with HR-professionals. It turned out that specific policies to prevent workplace bullying were lacking in the organizations, repressive measures like a counselor or complaint procedure were fairly present. According to the organizations however, the most effective way to prevent workplace bullying did not have to do with policies or other legal interventions but with making sure there was a culture within the company that did not tolerate workplace bullying. In future research there should be more studies which look into the effectivity of different interventions against bullying.
Prologue
In this research two topics I am interested in are combined. With my background in psychology and interest in human behavior, bullying is an interesting topic. Combining this with a human resource related topic which I find really interesting, namely labour law, makes it a perfect combination. Exploring the field of bullying from an employers’ view gives a totally different perspective on this topic than I would have had when I did this research for my Master in Psychology. Broadening my view was one of the reasons for doing a second Master and this thesis for my Master in Human Resource Management has definitely accomplished that.
Before the presentation of my research and the results I would like to thank my supervisor, prof. mr. dr. Kneppers-Heijnert, for her support. Her knowledge about the Dutch law and critical opinion were really helpful when writing my thesis.
Table of contents
Abstract.………. ……... 1 Prologue………….……… 2 1. Introduction………5 2. Theoretical background………... 7 2.1 Workplace bullying……… 7 2.2.2 Dutch law………....102.2.1. Obligations for the employer………. 10
2.2.2. Case law……….... . 11 2.2.3. Dismissal………... 13 2.3 Interventions……….. 15 3. Methodology……….. 17 3.1 Procedure………... 17 3.1.1 Literature study………... 15 3.1.2 Interviews……… 19 4. Results………20 4.1 Literature findings………. 20 4.1.1 Preventive measures……… ……... 20 4.1.2 Repressive measures………... 21
4.2 Findings from the interviews………. 22
4.2.1 Finding 1: Little awareness about the presence of bullying within the organization ………22
4.2.2 Finding 2: Fragmented opinions about the current law……...23
4.2.3 Finding 3: Preventive measures limited, repressive measures available………... 24
4.2.4 Finding 4: Culture and dialogue most effective.……... 25
4.2.6 Finding 6: Measures mentioned in the literature partially
supported in practice………... 27
4.2.7 Finding 7: Important note for the definition of bullying……. 27
4.3 Summary of the findings……… 28
5. Discussion……….. 28
5.1 Limitations………... 31
5.2 Implications and Future research………32
5.3 Conclusion………. 33
6. Epilogue………. 34
7. References……….. 36
Bullying in the workplace: the legal (and other) possibilities Dutch
employers have to prevent and solve workplace bullying:
an explorative study
1.INTRODUCTION
Each year a substantial amount of absenteeism and costs are related to bullying at work. In the Netherlands this entails 4 million extra days of absenteeism each year, which costs employers 900 million euros because of salary payment during absence (TNO, 2015). Workplace bullying is a current problem that has an impact on employees, the employer and society. In the early stages of research into this topic this was mainly done by organizational psychologists, now it is an interdisciplinary field of research (Einarsen, Hoel, Zapf & Cooper, 2003). Even though there is more interest in the field of workplace bullying, the amount of workplace bullying has been quite stable the last ten years (Bakhuys Roozeboom, Vroome, Zwieten, & Bossche, 2016).
campaign to get attention for and stop bullying in the workplace (Rijksoverheid, 2015). This shows that bullying in the workplace is a topical and society-wide problem.
In this research workplace bullying will be further investigated from an employers’ point of view. The obligations and possibilities employers have to tackle workplace bullying will be researched. The obligations for the employer stem from the Dutch law, the Dutch Working Conditions Act (WCA) to be specific. This act obligates the employer to create a save and healthy work environment for his employees, which includes having a policy for preventing psycho-social workload, like bullying. Together with the costs caused by absenteeism and the related problems for the company and the employees, this makes bullying a serious topic of interest for employers.
However, the Dutch Law is not very clear when it comes to workplace bullying. In the organizational psychology literature a very comprehensive definition of workplace bullying can be found, which will be discussed in paragraph 2.1. But in the Dutch law a definition of bullying is lacking. This lack of clarity can be found in an evaluation of the WCA concerning inappropriate behaviour as well. In this evaluation it was concluded that a bottleneck with regard to preventing inappropriate behaviour at work was that the policy regarding this behaviour was insufficient or unclear (Van Dam & Engelen, 2004). This might be because the WCA, which is a so called ‘framework law’, sets out the norms that have to be met, but employers are free to determine how they want to meet those norms (Ministerie van Sociale Zaken en Werkgelegenheid a, n.d.). So, the law does not provide a lot of guidance for employers with regard to workplace bullying. This may lead to insufficient policies, which could cause an insufficient way of acting by the employer when confronted with workplace bullying. From the above it can be concluded that there are a lot of things that are not clear when it comes to the legal tasks and responsibilities of employers concerning workplace bullying in the Netherlands. What is an appropriate way to deal with workplace bullying and what exactly is bullying according to the law? It is also seen that bullying is related to a lot of negative consequences for the employer as well as for the employees.
possibilities do Dutch employers have to prevent or solve bullying in the workplace in order to conduct effective business management?”. In this paper effective business management refers
to creating a productive, efficient and safe working environment. Because of the explorative nature of this study, a qualitative research method is used in order to find interesting data and new insights which could be input for future research.
In this paper the concept of workplace bullying will be discussed first. After that an overview of the Dutch law concerning bullying in the workplace will be given and case law will be presented. This will be followed by literature about possible ways of intervention. Then the way this research is conducted will be explained, the results will be presented and a discussion and conclusion of the findings will be presented.
2.THEORETICAL BACKGROUND
In the next three paragraphs the literature concerning bullying in the workplace will be presented. To get a clear picture of what this research is about, workplace bullying will be explained in more detail and a definition of workplace bullying will be determined which will be used during this research. In the subsequent paragraph the Dutch law concerning workplace bullying will discussed, this in order to make clear what the legal obligations are for an employer regarding workplace bullying. Together with some examples of case law, more insight in bullying at work and its consequences will be gained. In the last paragraph of this section the scope of this research will be defined more precise when the possible levels and types of interventions are explained.
2.1 Workplace bullying
Because the Dutch law does not provide a definition of workplace bullying, I looked into other sources to find a definition. In organizational psychology literature a lot of definitions of workplace bullying can be found and also in the Dutch House of Representatives1 (in Dutch:
Tweede Kamer der Staten-Generaal) an example of a bullying definition can be found:
“Bullying includes all forms of intimidating behavior which is structural, coming from one or
more employees (colleagues, superiors) that is directed towards an employee or a group of employees who are not able to defend themselves. An important element of bullying in the workplace is that it is a repetitive set of behaviors during a period of time. So bullying is not about a onetime incident. These behaviors can express themselves in different ways, but in
particular by words, gestures, actions or threats. This list is not limitative. Most of the time the goal of the perpetrator is to deliberately hurt or humiliate another person”.
The organizational psychology literature provides several definitions, for example the following definition of workplace bullying, also called mobbing by Leymann (1996: p. 168):
“Psychological terror or mobbing in working life involves hostile and unethical communication,
which is directed in a systematic way by one or a few individuals mainly towards one individual who, due to mobbing, is pushed into a helpless and defenceless position, being held there by means of continuing mobbing activities”.
Another way in which workplace bullying is described is (Namie & Namie, 2009a: p.3):
“Bullying at work is repeated, health-harming mistreatment of a person by one or more workers
that takes the form of verbal abuse; conduct of behaviors that are threatening, intimidating, or humiliating; sabotage that prevents work from getting done; or some combination of the three”.
And lastly a very comprehensive definition by Einarsen, et al. (2003: p.15):
“Bullying at work means harassing, offending, socially excluding someone or negatively
affecting someone’s work tasks. In order for the label bullying (or mobbing) to be applied to a particular activity, interaction or process it has to occur repeatedly and regularly (e.g., weekly) and over a period of time (e.g., 6 months). Bullying is an escalating process in the course of which the person confronted ends up in an inferior position and becomes the target of systematic negative social acts. A conflict cannot be called bullying if the incident is an isolated event or if two parties of approximately equal “strength” are in conflict.
supervisors and employees (vertical) (Duffy, 2009; Safe Work Australia, 2016). Vertical bullying can occur in both directions, employees can bully supervisors and supervisors can bully employees. Bullying can also come from clients or customers, however this type of bullying will not be part of this research. In this research the definition of Einarsen et al. (2003) will be used, because it is the most comprehensive one and because Einarsen is an often-cited researcher in this field.
Several types of workplace bullying can be distinguished. Zapf (1999: p.10-11) describes five different types of bullying: “(1) work-related bullying which may include changing your work tasks or making them difficult to perform; (2) social isolation; (3) personal attacks or attacks on your private life by ridicule, insulting remarks, gossip or the like; (4) verbal threats where you are criticized, yelled at or humiliated in public; and (5) physical violence or threats of such violence.” In this research physical violence and sexual harassment will not be included, because of their different nature and consequences and because they are mentioned separately in the Working Conditions Act which is mentioned in the upcoming section. Besides, this research is focused on labour law and the employers’ responsibilities, whereas criminal law will be of more importance when physical violence is at stake. Another type of bullying, which is relatively new is cyberbullying. This is bullying through electronical devices such as telephones or internet (Slonje & Smith, 2008). Several authors mention the distinctive features of cyberbullying compared to ‘normal’ bullying. The anonymity of the bully for example is a feature which is typically for cyberbullying in comparison with face-to-face bullying (Slonje & Smith, 2008; D'cruz & Noronha 2013). Because of these and other distinctive features, this research will only focus on face-to-face bullying.
2.2 The Dutch law
2.2.1 Obligations for the employer. Besides the fact that bullying is expensive for a
company and has negative consequences for the employees, companies should also think about consequences originating from the Dutch law with regard to bullying. The WCA, which will be explained more extensively later in this paragraph, obligates employers to conduct a policy around workplace bullying. According to Yamada (2007: p.12) “courts increasingly are holding that written employment policies are enforceable as contractual agreements”. According to Duffy (2009) this has important consequences for the employers’ liability when they violate their policies and bullying takes place within their organization. Employers are responsible for acting in congruence with their policies as well, otherwise they can be held responsible for not acting the way they agreed upon in their policy. Another consequence of the WCA is already mentioned during the introduction, namely the fact that the employer can choose themselves how to meet the norms set out by the WCA. However, it was seen that the policy regarding inappropriate behavior was viewed as insufficient or unclear (van Dam & Engelen, 2004). So there are two consequences from the WCA that are important for employers, the fact they have to have a policy concerning workplace bullying and act in congruence with it and the fact that they themselves have to find their way in how they want to conduct a policy concerning workplace bullying. This makes the workplace bullying an important but difficult topic to handle as well. The best way to handle the workplace bullying problem will be explored in practice (interviews) and in the literature during this research.
Like already mentioned, the WCA is important when we talk about workplace bullying and responsibilities. Based on the WCA Art. 3, par. 1; “the employer should take care of the safety and health of his employees concerning all activities related to the labour. The employer needs to conduct a policy which emphasizes the best working circumstances possible”. “Within this working conditions policy the employer conducts a policy that is focused on the prevention, or if that is not possible, the restriction of the psycho-social workload”, Art. 3, par. 2 WCA. Bullying is part of this psycho-social workload. According to Art.1, par. 3e, psycho-social workload is defined as “the factors directly or indirectly different including sexual harassment, aggression and violence, bullying, and workload, in the work situation that cause stress”. Besides the fact that bullying needs to lead to stress there is no definition to be found in the WCA.
jobs has to be written down in the RAE. The RAE should also include the way by which the employees are protected against these risks, an action plan (Art. 5, par. 1 WCA). This action plan includes the precise measures and an implementation strategy (Art. 5, par. 3 WCA).
Not only the WCA protects employees against bullying, but there is also another way in which the law contributes to this protection. The labour law also includes an article that states that the employer should take care of a secure working environment for the employee (Art. 7:658 BW). Article 7:658 par.1 BW states that an employer should take care of the rooms, machinery and equipment that are used when doing the job, this in order to prevent that an employee suffers damage while working. It is required that the employer provides instructions and actions to prevent damage to the employee when doing his job. If an employee suffers any damage during his job, the employer can be held responsible for it. But if an employer can prove that he did take care of a safe working environment as stated in article 7:658 par.1 BW or if the employee suffered damage because of intention or intentionally recklessness the employer is not held responsible according to Article 7:658 par.2 BW. According to the Supreme Court (in Dutch: Hoge Raad, HR) in their judgement on the 11th of March 20052, article 7:658 BW is
not only applicable in the case of physical damage but this article can also be applied in working conditions which cause psychological damage. Therefore, article 7:658
BW can also be used in the case of workplace bullying.
Another way by with employers have an obligation towards their employees concerning workplace bullying is by the collective labour agreement (CLA). In the CLA it can be stated that an employer should make sure there is a policy implemented to prevent inappropriate behavior or psychosocial workload. An example can be seen in the CLA of the Dutch Bank, which says that the employer should prevent inappropriate behavior which includes bullying. In this CLA it is also stated that the employer should provide an internal and external counselor with regard to inappropriate behavior (De Nederlandsche Bank, 2016). So as can be seen in the CLA of the Dutch Bank the presence of a counselor can be forced by a CLA. An employer should comply with the agreements in the CLA, but besides presence in a CLA, having a counselor is not something that is required by a specific law (Ministerie van Sociale Zaken en Werkgelegeheid, n.d.).
2.2.2 Case law. Case law presents a couple of examples in which workplace bullying is
the subject. The first example is a civil servant law case in which the employee experienced serious psychological problems because of bullying. This case was viewed by the Dutch
Administrative High Court (in Dutch; Centrale Raad van Beroep, CRvB)3. In this case a police officer was bullied for several years which had caused an inability to work because of psychological problems. The employee was dismissed because his inability to work was permanent. Now additional facilities and compensation are claimed by the employee, because he states that the inability to work is a result of exercising his function. The court concluded that the employee was bullied for several years and that these bullying behaviors towards the employee have been excessive. The self-assertion training the employer had offered the employee was not seen as an appropriate way of handling the situation because it puts the blame on the employee instead of the bullies. What should have been appropriate measures was not mentioned by the court. They concluded that the employer had failed to fulfill his duty of care and the court decided that the employer had to pay the litigation costs to his employee and reconsider the additional facilities and compensation.
In the second case the district court (in Dutch: Kantonrechter, Ktr.) of Zutphen states that an employer is responsible for the atmosphere in the working place4. In the case A – Reesink, the employee A has been bullied because of his sexuality. His colleagues made comments and bullied him with his homosexuality during his whole career. A has worked for Reesink for more than 20 years. After one year of an inability to work, A is able to work again. But the employment relationship was disturbed and therefore the employment should be ended on a short-term notice. According to A Reesink never did anything to stop the bullying and that caused the disturbed relationship. Reesink claims they did not know about the problems A was experiencing with the bullying and comments about his sexuality and therefore could not be held responsible for the disturbed working relation. But the district court does not find this plausible because A has had a conversation with the head of the personnel department about the bullying circa 5 years before. No action was taken after this conversation. The district court decided that Reesink should take care of a good work environment and by not taking any action to stop the bullying they contributed to the disturbance of the employment relationship and therefore should pay A a compensation. This compensation consists of ƒ10.000 because of immaterial damage and ƒ25.000 because of loss of income.
In the last case presented here5 bullying prevented a labour contract from ending. In this case an employee was accused of malfunctioning and therefore the employer want to end the labour contract. However, the employee was bullied by colleagues and this made the district
3 CRvB 23-03-2006, ECLI:NL: CRVB:2006:AX1651
court decide that the bullying might be the reason for the malfunctioning. Accordingly, the request to terminate the labor contract because of malfunctioning was denied by the court.
In the first and second case the employer is held responsible because he did not undertake (enough) action to create a safe working environment for his employee. And in the third case the influence of bullying on an employee was acknowledged when it was decided that this might be the reason for malfunctioning. These three cases show the problems that come along with workplace bullying; handling workplace bullying appropriately, taking care of a good work environment and deal with malfunctioning because of workplace bullying. They also show that a court finds the employers’ responsibility for creating a safe working environment very important.
2.2.3 Dismissal. The presented case law showed conflicts between the employer and the bullied
employee which are related to the laws discussed in the beginning of this chapter, but what about the bully? An employer might want to get rid of this bully. There are several ways by which an employment contract can be terminated. In the case of bullying, there are two ways which seem most relevant. The first one is summary dismissal, art. 7:677 BW. This immediate termination can be initiated by the employer or the employee. Initiation by the employer is what we talk about here. According to art. 7:677, par.1 BW one can terminate a labour contract with immediate effect because of an urgent cause. Three things are important when it comes to summary dismissal. First thing is that there should be an urgent cause. Second, the notice of termination should be immediate and the third one is that the employee gets informed immediately about the reason of the dismissal. Art. 7:678, par.2 BW lists examples of urgent causes for the employer, but this list is non-exhaustive. Urgent causes are “actions, characteristics or behaviors from the employee, which are such that the employer cannot in all reasonableness be expected to allow the contract to continue” (Art 7:678, par.1 BW).
A second way by which an employer can end the labour contract with a bully is by asking the district court to terminate the labour contract (Art 7:671b BW). This can be the case if the termination is based on Art. 7:669, par.3c-3h, BW. In the case of bullying Art.7:669, par.3e BW seems most appropriate: “imputable acts or omissions from the employee which are such that the employer cannot in all reasonableness be expected to allow the contract to continue”.
In both dismissal procedures it is important to provide good argumentation for the dismissal. The district court in Enschede6 did not approve a summary dismissal because there
was not enough argumentation yet. In another case7, an employee was accused of bullying and therefore the employer requested a termination of the labour contract, but according to the court “the bullying behaviors should be seen as, although serious, yet one-off incidents”. The court decided that these bullying behaviors did not justify a termination of the labour contract, and considering other circumstances as well, the court did not approve dismissal the request for dismissal. At the time of this case, the new “Wet werk en zekerheid” (Wwz), which encounters the laws concerning dismissal was not yet implemented. The Wwz was implemented in 2015 and included changes in the laws concerning dismissal. Case law including this Wwz is therefore relatively new and limited, especially in relation to bullying.
Firing an employee is not without risks. An employee can resist against a dismissal and ask for a fair compensation or reinstatement of the employment because of a wrongful dismissal (art. 7:681, par.1-1a BW). Another financial risk for the employer is that he has to pay the employee a transition payment when he requested a termination (Art. 7:673 BW), unless the termination is the consequence of serious culpable acts of the employee (Art. 7:673, par.7c BW).
Besides dismissal an employer might think about claiming a compensation from the bully because of damage suffered (productivity loss, sickness bullied employee). However, based on case law8 9, this seems difficult. The difficulty lies in proving that this damage is the result of intentionally or deliberately recklessness inflicted by the employee (art. 7:661 BW). In the case of workplace bullying, proving that the bully intentionally tried to damage the organization seems extremely difficult.
Overall, the employer has several legal obligations with regard to workplace bullying, but the law is not very concrete. Besides, case law concerning bullying at work is very limited and firing bullies seems not easy or without risk. So, what options does an employer have and how should an employer fill in his obligations? In this paper the possibilities and responsibilities employers have to prevent and solve workplace bullying will be further researched.
2.3 Interventions
Within an organization the Human Resource (HR) department is concerned with the performance as well as with the well-being of employees. Therefore HR has an important role when it comes to the minimization of bullying in the workplace (Woodrow & Guest, 2014).
There are several levels and types of interventions that can be used by HR when trying to prevent or solve workplace bullying. Vartia and Leka (2011) mention four different stages of intervention: a primary, secondary, tertiary and a fourth stage of intervention. Interventions at a primary stage try to prevent the specific damaging event from happening. At a secondary stage the intention is to manage the damaging event and decrease the possibility for the event to occur again. In this stage it is also tried to increase the options people have for coping with this event. The third stage includes interventions that aim to limit the impact of the damaging event and to alter the workplace in such a way that it is a healthy work environment again. The fourth stage is concerned with national and international policies about workplace bullying, like explained in paragraph 2.2. In this research we look especially into the prevention and solving of workplace bullying and therefore the primary, secondary and third stage. The fourth stage is also of importance but will not be part of this research in particular because the (national) law has an indirect effect (setting out the boundaries) and it is not something an employer can change himself.
FIGURE 1
Workplace bullying interventions (Leka et al., 2008).
In the sections above it is explained that workplace bullying is a repetitive, continuing set of behaviors which involves two or more persons and a difference in status. The implications of workplace bullying can be severe for all people involved. Serious health problems, less productivity and a higher stress level are all associated with workplace bullying. The Dutch law obligates employers to prevent this event from happening through a RAE and an Action Plan. But it is not stated which actions are appropriate or not to prevent or solve workplace bullying. This may lead to insufficient policies, which could cause an insufficient way of acting by the employer when confronted with workplace bullying. Insufficient ways of acting were seen in the case law in paragraph 2.2.2. On the internet it is easy to find guides on how to prevent workplace bullying. In scientific literature however, there is a lack of empirical research into the effectiveness of these interventions (Escartín, 2016).
To provide more structure to this research the main research question will be split into two sub questions. The first sub question is: “What are the legal possibilities for the employer
to prevent workplace bullying from starting?”. The second sub question concerns the
possibilities the employer has when they are confronted with workplace bullying: “Which legal
possibilities do employers have to solve workplace bullying?”. In the next section the method
of research used to answer these questions will be explained.
3. METHODOLOGY
The aim of this research was exploring the field of legal workplace bullying interventions for Dutch employers. The main research question was: “Which legal possibilities
do Dutch employers have to prevent or solve bullying in the workplace in order to conduct effective business management?”. This question was divided into the prevention and solving of
workplace bullying. A qualitative research was done to answer the question(s). The reason for choosing a qualitative research method was that there still is a lot to explore about the way in which workplace bullying is/should be handled. According to Johnson (2015) qualitative research is very useful when there is a lot unknown about the research topic. By doing research in a qualitative way it was possible to investigate the topic in a broad way and get as much information as possible.
3.1 Procedure
3.1.1 Literature study. Data were collected using both interviews and literature
databases. First a literature review was done to find a literature based answer on the research questions. In order to find relevant literature PsychInfo, WoltersKluwer, Legal Intelligence, Rechtsorde and Web of Science were used. In these databases was searched for articles that researched the legal ways how employers can stop or prevent workplace bullying. This online search included the following keywords: workplace bullying, bullying at work, mobbing and workplace harassment. These keywords were combined with the following set of keywords: law, legal, legislation and measure. Both Dutch and English translations of these keywords were used in order to find as many relevant research papers as possible. In the legal databases (Wolters Kluwer, Rechtsorde and Legal intelligence) was searched for journal articles concerning labor law with the following (Dutch) keywords: pesten op het werk and mobbing.
still seemed relevant, information was extracted. The conclusions/recommendations about how to prevent or solve workplace bullying presented in the papers′ result or discussion section were extracted and summarized in this paper.
When conducting the literature search for legal prevention and solving possibilities the following inclusion criteria were taken into account: (1) Only articles from the last ten years (2006- 2016) were included, (2) the articles had to be about workplace bullying which could fall under the definition by Einarsen et al. (2003), (3) only articles about non-physical bullying are included, (4) they focus on inter-organizational contact such contact between coworkers, supervisors and subordinates, (5) articles specifically focus on juridical/legal ways how employers can prevent or solve workplace bullying (6) cyberbullying and sexual harassment were not included (7) only articles written in Dutch or English were included.
At first there was searched for quantitative data so there could be made conclusions about the effectiveness of the preventive/repressive measures. It soon became clear that there was a lack of quantitative research about the effectiveness of interventions and repressive methods for workplace bullying. This made the selection of relevant articles more difficult, because there were little clear numerical answers. Therefore, the strict inclusion/exclusion criteria, (8) use of control group and experimental group, (9) effectiveness measured by qualitative good method, were removed. The information that was thought of as relevant and should be included was therefore also based on the opinion of the author. There was awareness of the consequences for reliability but because of the explorative nature of this paper, it was decided to continue this way.
Based on this literature search there was an overview of relevant ways by which an employer can prevent or solve workplace bullying. After this, several interviews were conducted with HR-professionals. The literature overview included 30 articles. See table 1.
TABLE 1
Literature search results Number of articles Total number of articles found 1389
3.1.2 Interviews. After the literature review five semi-structured interviews were
conducted. The findings from the literature research were verified and discussed with the HR- professionals to see and compare practice with literature. It was also looked for interventions which were not mentioned in the literature. The interviewees were asked questions about their current policy concerning workplace bullying in their organization. Table 2 shows an overview of the interviewees and companies. This was done using a semi-structured interview, which took approximately 60 minutes, see Appendix A. One interview ended prematurely and the respondent answered the last two questions by email. The interviews were conducted in five different organizations. After consent from the interviewees the interviews were recorded and transcribed afterwards. All the organizations preferred to keep anonymous, therefore the names of the organizations are not mentioned. The interviews were then analyzed and coded using Atlas.ti software. The answers of the respondents were coded according to the different intervention methods and practices. Important quotes or other information given during the interview were also coded. After coding each interview, the results were compared and different categories were put together. This made it easy to provide an overview of the methods used in practice and seen as effectively. They were compared with the theory to see if there were gaps or new insights.
It was also asked if the organizations were willing to share their policies concerning workplace bullying. Three organizations, organization 2,4 and 5, provided their regulations which included workplace bullying. Organization 1 was revising an old policy at the moment and this policy was not ready yet. Organization 3 would like to keep his policies confidential and therefore did not share them.
TABLE 2 Overview interviews Interview/
Respondent
Role interviewee Type of
organization
Size of the organization (employees) 1. Coordinator labor & health/labor
expert
Posting and
secondment services
5000
2. Unit head health & safety services Hospital 2800
3. Health case specialist Dairy producer 4000
4. HR director Industrial wholesale 1522
4.RESULTS
1389 articles were found using the keywords and five interviews were conducted. In the next section the findings from the literature and interviews will be presented. First the most important findings from the literature search will be presented. After the presentation of a summary of the main findings from the 30 included articles the data from the interviews will be presented.
4.1 Literature findings
4.1.1 Preventive measures. In the studied literature the most often stated legal preventive
However, not every article simply encourages to have an anti-bullying policy to prevent bullying in the workplace. Salin (2008) reported no positive or negative influence of having a policy on the chance that managers take action against bullying. Not only the presence of a policy is important, as well as making sure that this policy is implemented (Askew, Schluter & Dick, 2013).
Writing down what is acceptable behavior and what is not may function as a warning and a sign that it your behavior is being observed (Kaya Cicerali & Cicerali, 2016) A code of conduct may also be a place to define bullying and mention consequences when it takes place (Martin & LaVan, 2010). Being proactive rather than reactive is important, so employers should try to intervene and identify (risks for) bullying as soon as possible (Chan-Mok, Caponecchia, & Winder, 2014). Simply not hiring bullies might be a proactive way to prevent bullying, this might be done by an integrity test before employment for example (Catley et al., 2013; Servaes, 2007). In their research, 29% of the employers tried to not hire bullies (Catley et al., 2013).
4.1.2 Repressive measures. Besides having a policy which states what workplace
bullying is and how people can report bullying, it is also important that there are processes that help to stop the bullying. Having written down in the policy which actions will be taken after bullying has occurred will help to diminish workplace bullying (Duffy, 2009). Several researches mention alternative dispute resolution (ADR) (Carbo, 2009; Fox & Stallworth, 2009; Duffy, 2009). Fox and Stallworth (2009) mention three types of ADR processes in their paper: Arbitration, adjudication and mediation. According to them arbitration is the most formal and binding one. In their research Kaya Cicerali and Cicerali (2016) found that mediation was mentioned most often as a way to address workplace bullying, but they are not convinced that this is a good method to deal with workplace bullying because you put the bullied employee in a position where he/she has to negotiate with the bully.
Rourke (2016) is to check if changing the incentive system of a company discourages employees to show bullying behaviors. Other organizational procedures should also be checked if they are fair and transparent (Blackstock, Harlos, Macleod & Hardy, 2015). Making sure that people are protected from retaliation as a consequence from reporting bullying is also important and can be done by a non-retaliation policy according to Ritzman (2014).
4.2 Findings from the interviews
After the presentation of the literature findings, the interview findings will be presented. These interviews within five different organizations showed some interesting findings which will be presented in the next sections.
4.2.1 Finding 1: Little awareness about the presence of bullying within the organization. According to the CBS, about eight percent of the working population experiences
bullying at work. Only respondent 2 knows how often it takes place in her organization. Using an employee survey it turned out that this percentage is four percent. The other respondents do not know how often bullying takes place or say that they are not aware of any cases. An important addition to this is that the respondents realize that the fact that they are not aware of bullying does not mean that bullying does not happen in their organization. Respondent 4 says: “I am not aware that things happen, but they happen for sure”. Respondents 3 and 4 for example refer to the size of their organization and say that they are sure bullying must take place in their organization because of the large number of employees in their organization.
Signaling workplace bullying is the first step, which is not seen as easy. The way by which bullying should be signaled is not captured in a protocol by the organizations. There are mainly four ways mentioned by which workplace bullying could be signaled. The first way is by managers or colleagues who notice it. The second way is by the bullied employee himself when he tells a manager or a counsellor for example. But because of confidentiality the sharing of this information by a manager or counselor is dependent on the permission of the employee. A third way that is mentioned is by getting information about workplace bullying from the health and safety service or a company doctor for example, this is bounded by confidentiality too so. And a fourth way by which workplace bullying can be signaled is through an employee survey. This was done in organization 2. But overall, the most important way by which bullying is expected to be reported is by the bullied employee himself or his colleagues or manager. “In
principle, do we expect that, when you are being bullied, you tell someone about this”
4.2.2 Finding 2: Fragmented opinions about the current law. Three respondents state
they experience enough guidance from the WCA when it comes to workplace bullying. Attention for this topic in the law is valued and the three respondents do not think any changes to the law are necessary. But not all organizations agree with this and differences between the organizations concerning their opinion about the current law exist.
Respondent 4 is not sure if the responsibilities for the employer are clear enough and respondent 3 for example argues that the law could be more specified to provide more guidance for organizations. She argues that there should be aimed for a separate protocol for bullying, instead of putting it under a general protocol for psychosocial workload. However, stricter or more laws are also seen as a restriction of flexibility and do not allow for a tailored approach for every case. “Rigidity patronization”, “lack of flexibility” and “even more rules and even
more regulations” are terms organizations (1, 2 and 4) used in relation to more legislation. So
there is no agreement on if the current law is concise enough when it comes to bullying. Respondent 2 on the other hand thinks that a big organization, should not even need the law to make sure they do something against it: “I feel like it should not be regulated through the law.
But simply as a company, you can, you should organize it yourself, especially a big company like organization 2 should not need legislation to prevent bullying. Then you place it outside yourself, so that is, that means that the responsibility lies with the law instead of taking responsibility yourself, like I just want to be a good employer, we do not bully here, we do not want that, we do not tolerate that and we have our procedures to regulate this then”. However,
smaller or new organizations may need more guidelines and support.
It is also important that it is not just a policy on paper that ends up somewhere. Respondent 5 therefore questions the effectiveness of laws and regulations in this case. “Then
it sometimes turns into a box-checking form, like ‘well if this and that has been put in a flow chart or a workflow description then it is covered’. I do not think that is the essence of incorporating a policy or how you interact with each other”.
Overall there are different opinions about the current law. Most organizations say they experience enough guidance by this law. If smaller organizations feel the same is questioned.
4.2.3 Finding 3: Preventive measures limited, repressive measures available. None of
An often-mentioned preventive measure was a code of conduct. Organization 2 and 4 provided their codes of conduct and these codes included some general comments like “respect” or “ethical behavior”, but no specific references to bullying. In contrast to the codes of conduct which are more general, some respondents said that their organization should have a specific statement about bullying: “But what I said, we miss a statement that we just say we do not
tolerate it, a no-tolerance policy actually concerning bullying and there we think well, me and the director P&O, he that is something we still want. In the spring we are going to undertake action to see if we as a company just say, this is our statement”. Both organization 1 and 2 are
saying they should have a specific statement, which they do not have yet. Two other organizations, organization 4 and 5, had written a statement down concerning inappropriate behavior. Organization 5 states in their ‘regulation concerning inappropriate behavior and possible use of complaint committee’ that “Management stresses that inappropriate behavior is
not tolerated”. However, during the interview it was clear that respondent 5 was not aware of
this statement by the organization. Organization 4 states in their ‘regulation counselor’ that “Within organization 4 inappropriate behavior, of any kind, is not tolerated”. Both organizations explain the different forms of inappropriate behavior afterwards and give a definition of bullying and some examples of bullying behavior. Besides the code of conduct and policies regarding complaint procedures or counselor, the organizations do not mention other legal preventive measures.
The following response is a good example of how organizations have arranged things concerning workplace bullying. On the question if the organization has some form of policy to prevent workplace bullying, respondent 3 answered: “No, we do not. No, so at the moment that
it happens, we have everything well in place”. In contrast to actions taken to prevent bullying,
the actions taken after bullying took place are better regulated and/or written down clearly. The most important repressive measure present in all organizations was a counselor. All organizations had a route by which bullied employees could reach an either internal or external counselor. In the first place a counselor was there to listen to the employee and give some advice if asked for. A counselor could also function as a mediator when listening and advice is not enough and the employee is not able to solve the problem himself. Regulations concerning the counselor are written down and available for the employees. By using posters or intranet for example, it is communicated to the employees that there is a counselor and it is explained how to reach him/her.
committee was absent. They are currently thinking about how to formalize this committee. But they have a clear view about what happens if mediation does not work out: “At a certain point
one will then end up in some kind of labor conflict, either with party left or right”. The way to
court might follow then according to respondent 4.
Sanctions as a result of a complaint procedure are possible repressive measures. These sanctions could include: a warning, a reprimand, suspension, a fine, transfer or dismissal. Before these sanctions take place, a settlement agreement could also be an option according to respondent 2. According to respondent 5 bringing it to court will be a challenging job for HR due to difficulties with presenting facts on paper and gaining enough factual evidence.
These findings from the interviews show that preventive measures are only present in a limited way in organizations in the form of a general policy against inappropriate behavior for example. Repressive measures are more present. A counselor, mediation and a complaint procedure are often mentioned intervention measures.
4.2.4 Finding 4: Culture and dialogue most effective. As can be seen in table 3, the
most often mentioned measures that are seen as effective to prevent and also to solve workplace have to do with communication. Worthy of attention when looking at table 3 is just a few reference to legal measures mentioned by the respondents as most effective way to prevent or solve workplace bullying. “A policy does not help, that bullying does not happen. You know,
this, it should be culture”, according to respondent 4. Enabling a dialogue about workplace
bullying and make people aware of the fact that it is not tolerated by the organization are thought of as very important and effective. Regarding this, respondent 1 states: “I think the strength lies
in keeping on repeating and making clear to your employees that you do not tolerate this behavior. But if you do experience it that you feel invited to do something with it”.
Respondent 3 highlights the need for a dialogue by saying the following: “Then the next
step is to actually dare to mention it and I think that is where we still have a way to go. If you never have the conversation, that you never dare to ask a question that is a bit about the underflow, then you will never pick these things out of it. And then you can have wonderful procedures but you will not get anywhere” Also respondent 4 acknowledges that talking about
Table 3
Most and least effective preventive and repressive measures regarding workplace bullying according to the respondents.
Prevention Repressive
Organization Most effective Least effective Most effective Least effective
1. Enable a dialogue about bullying Do nothing. Engage in a dialogue (informal) Do nothing. 2. Enable a dialogue, have a culture that does not tolerate it.
3. An (anonymous) reporting option
4. Talk about it. Show that you do not tolerate it.
Punishment (creates negative attention).
Ignore the fact that bullying can occur. Externally imposed measures (it should be culture within the company) Engage other people, enable discussion A good route to undertake action and then a tailored approach
Immediately make sure bullying behavior is not tolerated.
Not talking about it, and punishing bully.
Treat every case the same and a lack of clarity for who undertakes action when it is reported Putting it under the carpet. 5. Trust and cooperation between team members. Culture that does not accept it.
- Enable discussion
within a bigger picture, not only between bully – bullied.
Put the bully publicly to shame
4.2.5 Finding 5: Bullying not mentioned in CLA. None of the respondents were aware
of any agreements in the CLA concerning bullying. Eight CLA’s mentioned during the interviews were checked for any references to bullying or a counselor. None of the CLA’s included something about a counselor and none specifically mentioned bullying. The only reference related to bullying was that some CLA’s include something about having a policy to prevent inappropriate behavior. Inappropriate behavior is not further specified in the CLA’s.
4.2.6 Finding 6: Measures mentioned in the literature partially supported in practice.
The main things found in the literature review: having an anti-bullying policy, mediation, sanctions for bullies making sure everyone knows the policy and preventing hiring bullies can partially be seen in the organizations as well. The respondents agreed that having an anti- bullying policy would be helpful to tackle workplace bullying. This was accompanied by some comment like “If you formulate it in a positive way” (respondent 2) and the note that you should not make it just a policy on paper but also implement it in practice (respondent 4). However, none of the organizations had a specific anti-bullying policy. Mediation was seen as a very effective way to handle workplace bullying and used by the organizations. If mediation does not work, sanctions are seen and used as an intervention. The complaint committee who handles the case caused some difficulties with regard to the question how to arrange a good complaint committee in congruence with the law. With regard to making sure every employee knows the policy, there was agreement that this was an important factor. It was added that making sure everyone knows where to find this policy was especially important (respondent 2). Lastly, all the organizations thought that preventing hiring a bully was difficult if not impossible. Three organizations mentioned that they (sometimes) ask for a certificate of good conduct some organizations told that they used assessments but these instruments were not used in order to prevent hiring bullies. They also did not think that this would work out to discover who is a bully.
4.2.7 Finding 7: Important note for the definition of bullying. When defining
workplace bullying it is important to look at the perspective from the bullied person. Whether he experiences the behavior as bullying or not. This can be seen in the ‘regulation concerning inappropriate behavior and possible use of complaint committee’ from organization 5 for example. The following statement can be found after the explanation of the different types of inappropriate behavior: “In order to determine whether there is inappropriate behavior this is
intolerable by another. An employee who feels threatened is the one who decides what is inappropriate behavior, not the one who harasses”.
4.3 Summary of the findings
The literature review showed that having an anti-bullying policy and implementing this are important legal preventive measures. Preventing that you hire a bully is also named as preventive measure in the literature. The most important repressive measures according to the literature are mediation and sanctions. Besides this it is important that everyone in you company knows the policy.
Based on the interviews, seven findings were presented. The first finding was that organizations are not or just a little aware that bullying happens within their organization. The second finding showed that overall the organizations experience enough guidance from the WCA when handling workplace bullying. However not every organization agrees with this and especially smaller companies are expected to need more guidance. Thirdly, it was found that legal preventive measures are present only in a limited way. Repressive measures however are much more present. Next, the fourth finding was that talking about bullying and creating a culture wherein bullying is not accepted is seen as the most effective way to prevent and solve workplace bullying. Finding five shows that bullying or a counselor was not present in one of the CLA’s. The sixth finding had to do with comparing the research results in the literature with those in practice. Most measures could be find in practice as well and are acknowledged by the employers to be effective. The last finding is a note that should be made when defining workplace bullying. It is important that you take into account the perspective form the bullied employee when deciding if something is bullying.
5. DISCUSSION
research will be addressed.
The first thing that became clear when starting with this research was the fact that there could not be found a lot of guidance in the law on how to handle workplace bullying. But as can be seen in section 2.2, employers have responsibilities when it comes to workplace bullying. Scientific literature about the effectivity of workplace bullying measures is very scarce. It seems that workplace bullying is a topic that is rather new and organizations just start to pay more attention to this topic.
When looking at the legal possibilities employers have to tackle workplace bullying, preventive and repressive measures can be distinguished. In the literature several preventive measures were found. The most often mentioned and most extensively described one was an anti-bullying policy. But just having a policy is not enough, like Askew et al. (2013) already mentioned, it is important to also make sure it is implemented and this was endorsed in the interviews. Enabling an open discussion about workplace bullying and creating a culture within the company that shows that workplace bullying is not tolerated are the most important measures by which bullying can be prevented according to the respondents. How to create this type of culture is not clear yet from the interviews. An interesting example of how important the overall culture in the organization is was present in the interviews. One respondent told that the organization did not have a statement about workplace bullying, however in their regulation sent to me after the interview they clearly stated that inappropriate behavior was not tolerated by the direction. This example shows that this statement apparently was not something people on the work floor were aware of. So, the value of such a statement written in a policy is none, unless this is also communicated within the organization. Organizational culture is recognized to have an influence on workplace bullying by literature as well (Daniel, 2009).
arise when trying to prevent hiring bullies has to do with justifying that you do not hire someone because you believe he or she is a bully. One might be sued for not hiring someone because of this and it might be hard to advocate this in front of a judge. Problems with defending this was mentioned by respondent 5.
The line between preventive and repressive methods is thin because for example an anti- bullying policy is a policy that is made up front which should include a statement, definition and examples of bullying (Duffy, 2009) and by communicating this and creating a culture that represents this, it is tried to prevent bullying from starting. But when bullying takes place, this same policy is there to guide employees on what to do. According to the literature a good policy should include the person who employees can contact when they experience bullying (Fox & Stallworth, 2009; Duffy, 2009). In practice this person was often a counselor. And this counselor could be seen as the center of the repressive measures concerning bullying in the organizations. The counselor could provide guidance for the bullied employee and could also try to mediate between the bully and the bullied. If this would not work out, an internal complaint procedure could be the next step, but an employee could also press charges against a bully. An employer could also try to press charges in the form of requesting a compensation from the bully but this might be difficult as explained in section 2.2.3. Unfortunately, the interviews did not provide examples of cases and how the organizations handled these. Like mentioned earlier, it is important that a policy is not only written but also actively communicated and enforced. When doing this an employer increases the chance that a summary dismissal will be approved by the court. If an employer consequently enforces his policy and clearly communicates his policy which states that certain behaviors are not tolerated and will be followed by a termination of the contract, this improves the chances of summary dismissal approvement. This was the case in case law about a steward who did not comply with the alcohol-policy of the airline10. The airline had communicated the policy clearly and enforced
his policy clearly in the past. This contributed to the approval of a summary dismissal. I would suggest the same is true for an actively communicated and enforced anti-bullying policy.
This research was done in five different types of organizations. When looking at the ways by which the organizations handled workplace bullying, not much differences could be found between the organizations. It was especially looked for difference between the more industry-related organizations and the more health or business service related organizations because of the difference in bullying rates. Not much differences were found. The most
noticeable factor was that one company in the above average sector (industry-related), company 5, just started with hiring a counselor for the whole organization and they did not have a complaint committee yet. If it is the case that a lot of industry-related companies just start to develop anti-bullying measures and therefore have higher rates of workplace bullying, cannot be said based only on this observation. But it might be interesting to look at this in future research.
When looking at the interview results it seems that the solving part of workplace bullying is better regulated in the organizations than the prevention part. However, preventing workplace bullying from happening would be most ideal. So, prevention is better than cure, but cure is better regulated.
5.1 Limitations
This study has some limitations. The first limitation has to do with the methodology. The use of a qualitative research method has influence on the external validity. It is difficult to generalize the results of this research to other companies or contexts. The small sample group also hinders the generalizability of this research. As already mentioned in the method section, the selection of the articles had a subjective nature, because of the lack of quantitative research articles on the effect of different interventions. Therefore, the selection of the articles was influenced by the opinion of the author. It was difficult to make the selection of articles because none of the articles exactly researched what was looked for and a PICO model which is often used to do a literature review could not be used. There were also difficulties with distinguishing articles that were specifically about workplace bullying, because articles about overlapping subjects like discrimination or sexual harassment were also found. Not every article made it clear what the exact topic was. These difficulties with the literature review have a negative influence on the reliability of this research.
It turned out that there was not a lot of time to dive in deeper into all the answers given by the respondents. Sometimes the author would have wanted to get some deeper understanding but this was not always possible due to a time complaint and because of the urge to be able to get all the answers to the question in appendix A. A question that which I should have asked more often, also when I thought it was explained already, was ‘If not, why not?’. When transcribing the interviews, it turned out this question was not dealt with in every interview. A smaller list of questions or a standardized questionnaire would have helped to prevent this.
included in this research. Therefore, one should keep in mind that only larger companies have been part of this research when reading the results.
The last limitation of this study mentioned here has to do with a time complaint. The literature review could have included more search terms and therefore more articles. But because of the limited time that was available to do this research, it was not possible to enlarge this to see if effect studies could be found for example.
5.2 Implications and future research
This research has shown that organizations have some measures to tackle workplace bullying, but these are not extensive and especially the preventive measures are limited. The effectiveness of the certain measures however, are not clear. In the literature little is written about the effectiveness of the preventive and repressive measures. Experimental research about the effectiveness of these measures would be the suggestion for future research. This is already done in a more extensive way in research into the effectiveness of anti-bullying intervention at schools, as can be seen in a meta-analysis from Ttofi and Farrington (2009). Before any repressive measures can be taken it is important that bullying is signaled. This seems problematic in the organizations. If one out of 13 employees has to do with workplace bullying, than it seems rather impossible if an organization with more than 300 employees is not aware of any cases of bullying. So one of the implications from this research is that signaling workplace bullying needs more attention within companies.
When looking at the case law in section 2.2.2 it seems that bullied employees are always drawing the short straw and have to leave the organization whereas the it seems really hard to get rid of the bully as can be seen in 2.2.3. What happens to the bully, does he receive any sanctioning at all? That is not clear in the case law. Because no examples of bullying cases were provided by the respondents during the interviews, there were no examples of used laws or ways to fire bullies either. In future research the sanctioning and suing of bullies should be addressed. Company lawyers might provide more insights.
5.3 Conclusion
This research was done in order to provide an answer to the research question: “Which
legal possibilities do Dutch employers have to prevent or solve bullying in the workplace in order to conduct effective business management?”. When looking at the prevention of
workplace bullying an employer is obligated by the law to have a policy to prevent psychosocial workload, which includes bullying (Art. 3 WCA). An assessment and evaluation of the risks employees face while doing their job and a plan on how the employer will try to minimize these risks is also obligated (Art. 5 WCA). Overall, the employer is expected to create a safe work environment (Art. 7:658 BW). The law however does not prescribe how to do this exactly, employers are given freedom in how to fill in their policies. The law also does not give a definition of what bullying is. So, when it comes to the prevention of workplace bullying, the law does not provide a lot of guidance. Having an anti-bullying policy which is actively communicated is seen as an important way to prevent workplace bullying, both according to literature and the respondents. Besides having a formal policy, another important preventive measure is creating a culture that does not tolerate bullying and where people can talk openly about the topic bullying. This however is not a legal measure but can be seen as a precondition for an effective anti-bullying policy.
Overall, workplace bullying is a subject that is quite unknown in case law and is starting to get more attention within organizations. According to the respondents, bullying is a subject that should receive attention, but is also a difficult subject to trace down and talk about. Having a policy in which bullying is explained and steps that are taken after noticing it is useful, not only to create clarification for employees, but also when an employer goes to court. It is important that all employees know where to find this policy and know that bullying is not tolerated within the company. Actively communicating this message is something that can be improved within organizations. An informal way of handling workplace bullying by addressing it immediately seems to have the preference. If this is not possible, the formal route should be followed and sanctions or dismissal can be a consequence.
6. EPILOGUE
As an author, I would like to tell something about my personal experiences and thoughts resulting from this research. The first thing I was surprised about was the lack of experimental research in this field. I expected that workplace bullying would be studied in a more extensive and varied way, more like bullying at schools. This made it much harder to do a good literature review because the inclusion and exclusion criteria were less strict than in the case of quantitative effect studies. Therefore, the results from the interviews were seen as even more important. But it also showed that I chose a relevant topic which is new and has a lot of opportunities for further research.
From the interviews I got the impression that the employers were willing to do something to prevent or solve workplace bullying, but that for most of them, it was not on top of their list because it was not always seen as a problem within their organization. I also noticed that workplace bullying was an upcoming subject and some of my questions made them think about aspects they had not thought of before. This was interesting to see, because I did not feel like I asked very unusual thing.
