The Mandatory Code of Unacceptable Behaviour: What does the change in the law mean for employers?

On February 17, 2025, State Secretary for Social Affairs and Employment, Mr. J.N.J. Nobel, submitted a bill to amend the Working Conditions Act (Arbowet) to require employers with ten or more employees to have a written code of conduct against undesirable behaviour. This proposal, which is currently open for internet consultation, aims to promote a socially safe working environment by explicitly addressing undesirable behaviour such as bullying, sexual harassment, discrimination and work pressure.

Legal context and background

Employers are already required under Section 3 of the Occupational Health and Safety Act to implement a policy to prevent psychosocial workload (PSA), which includes undesirable behaviours. However, research and practical experience show that this obligation is often not sufficiently implemented in practice.

Research has shown that in 2023, 7% of employees experienced unwanted behavior from colleagues or supervisors. Research in 2018 showed that about 38% of all companies have a code of conduct regarding unwanted behavior. This percentage does not seem to have increased in recent years. The central government has undertaken a number of activities in recent years to encourage companies to develop policies to combat undesirable behavior. However, the percentage of employees reporting unwanted behavior is still high.

The 2023 National Action Program on Combating Sexually Transgressive Behavior and Sexual Violence emphasized the need for additional legal measures. Therefore, the Occupational Health and Safety Act will be amended by introducing Article 5a, which explicitly includes the obligation to have a written code of conduct.

What will change in the Health and Safety at Work Act?

• Introduction of a mandatory written code of conduct for undesirable behaviour

Employers with ten or more employees will be required to have a written code of conduct aimed at preventing and limiting undesirable behaviour in the work situation. This obligation is set out in the new Article 5a of the Occupational Health and Safety Act.

Employer" means the employer as defined in Article 1 of the Working Conditions Act. This also means that in the case of a temporary employment agency, the "hirer" is considered the employer and not the temporary employment agency itself.

• Definition of undesirable conduct

Article 1 of the OSH Act adds the term "undesirable behavior" to the list of definitions. This term refers to factors in the work situation that cause stress, including in any case aggression or violence, direct or indirect discrimination, harassment, sexual intimidation and work pressure. This is not an exhaustive list. In addition to the above, the definition also refers to "other unwelcome conduct".

What is meant by "other unwelcome conduct" is not specified. However, the (draft) Explanatory Memorandum indicates that terms such as "undesirable behavior" or "transgressive behavior" are regularly used as alternatives to "undesirable behavior". The term "undesirable behavior" has no other meaning.

This open standard of undesirable behavior leaves open the possibility of defining in one's own personnel manual what behavior in the company or industry - in addition to the behaviors listed above - is specifically considered undesirable.

• Content requirements for the code of conduct

Article 5a(2) of the Working Conditions Act stipulates that the code of conduct must contain at least the following elements

(sub a) Definitions of undesirable conduct: A clear description of the behaviors that are considered undesirable.

(sub b) Examples of undesirable conduct: Specific examples to help employees understand what constitutes unwelcome behavior.

(sub c) Reporting Procedures: Instructions on how and where employees can report unwanted behavior, such as to a confidential counselor or through a grievance procedure.

(sub d) Sanctions Policy: An outline of possible actions or sanctions for violations of the Code.

(e) Contact Person: The position of the person within the organization who is the point of contact for questions or comments about the Code.

• Information and Accessibility.

Employers must ensure that all employees have access to the Code of Conduct and are adequately informed of its content and importance. This is stipulated in Article 5a(3) of the Occupational Health and Safety Act.

Exemption from the code of conduct for small employers

Employers with fewer than ten employees are exempted from the obligation to draw up a code of conduct. This is in recognition of the limited administrative capacity of small businesses. However, all employers are expected to provide a safe working environment.

Implementation and Enforcement of the Code of Conduct

Employers must actively involve their employees in the development of the code of conduct. This can be done through the works council (OR) in accordance with Article 27 paragraph 1 letter d of the Works Council Act or through a staff representative body (PVT) in accordance with Article 35c paragraph 3 of the Works Council Act. If there is no works council or employee representative body, the employer must consult interested employees when drafting the code of conduct. This follows from Article 12(1) of the Working Conditions Act. The code of conduct must also be communicated within the organization and employees must be informed and trained about it.

The Netherlands Labour Inspectorate (NLA) is responsible for monitoring compliance with this obligation. In the event of non-compliance, employers may be subject to sanctions based on Section 33 of the Working Conditions Act, ranging from warnings to fines.

Planned effective date

The proposed effective date of the Act is July 1, 2026. This means that from that date, employers with ten or more employees will be required to have a code of conduct against undesirable conduct that has been approved in the prescribed manner by the works council or PSC, or on which the employees concerned have been consulted.

Conclusion

The proposed legislative amendment strengthens the existing obligations of employers and forces them to explicitly address unwanted conduct. Employers would be well advised to prepare now to draft and implement a code of conduct, or to have existing policies reviewed in light of this new bill.

Questions about the Mandatory Code of Conduct?

If you have any questions about the above or would like more information on this topic, please contact Merienke Zwaan, employment lawyer.