Confidential counsellor

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    Designation

    The designation of a confidential counsellor is recommended but not mandatory.

    Employers may designate as a confidential counsellor a member of staff or a person external to the company or institution.

    If the Prevention Advisor for psychosocial aspects is part of an external service for prevention and protection at work, at least one of the confidential counsellors must be a member of staff in the company (unless the company employs fewer than 20 workers).

    At least one person must have a detailed knowledge of the internal operation of the company to facilitate understanding of the case, and at least one person must be easily accessible to workers.

    Furthermore, all the workers’ representatives within the Committee may ask the employer to designate a confidential counsellor.

    Designation procedure

    If the employer decides to designate one (or more) confidential counsellor(s), he must obtain agreement on this person from all the members who represent workers within the Committee.

    If agreement is not obtained, the employer must request the advice of the Supervision of Well-being at Work inspection service, which will first attempt to reconcile the parties. If reconciliation is not possible, the inspection service will issue an advice to the employer. The employer will send this advice to the workers' representatives. If the employer does not follow this advice, he will inform the Committee of the reasons for this.

    If there is no Committee within the company, the trade union delegation will play this role.

    If there is no trade union delegation, the workers must be directly involved in this issue:

    • The employer must notify all the workers, on a board or via any other means of communication (by email, for example), of the identity of the confidential counsellor they plan to designate.
    • The workers have 15 days to write their comments in the register that the employer must make available to them, or to submit them to the internal service for prevention and protection at work (or the external service if the employer acts as the Prevention Advisor themselves).
    • The prevention service sends the comments to the employer, respecting the anonymity of the workers, together with its own advice.
    • The absence comments implies the agreement of the workers. The employer must contact the Supervision of Well-being at Work inspection service if they do not agree with the comments. The inspection service issues an advice if it cannot achieve reconciliation.
    • The employer provides this advice to the workers and informs them of the decision. The employer must provide reasons to the workers if this decision does not conform to the comments made by the workers and the advice of the inspection service.

    If all the workers' representatives within the Committee ask the employer to designate a confidential counsellor, the employer must launch the selection procedure and call for candidates for this position and request the prior agreement of all the workers' representatives on the Committee on the appointment of one or more of the candidates (as explained above). If there is no Committee within the company, the trade union delegation or otherwise the workers, can do this.

    The contact details of the confidential counsellor must be written in the work regulations and in a place that is easily accessible to the workers (poster, intranet, etc.).

    If there is no confidential counsellor or internal Prevention Advisor for psychosocial aspects

    If there is no designated confidential counsellor, and the Prevention Advisor for psychosocial aspects is part of an external service, the Prevention Advisor responsible for managing the internal service for prevention and protection at work will take on the information role of the confidential counsellor during the phase prior to a request for psychosocial intervention. This person is therefore available in the first instance only to inform workers about the various existing procedures available to them in the area of psychosocial risks at work and to provide the contact details of the external Prevention Advisor for psychosocial aspects.

    They are bound by professional secrecy when carrying out this information role.

    The aim is for there to always be a person present in the company to provide workers with the information they need.

    As this role is limited to information (and not intervention), designation is automatic (i.e. it does not require the agreement of the workers' representatives on the Committee) and no specific training is required. However, there are certain nuances:

    • The Prevention Advisor responsible for managing the internal service is free to refuse to take on this information role.
    • The Committee can also refuse this principle, for example because they do not believe that the Prevention Advisor responsible for the internal service has the required trust or the appropriate profile for taking on the information role of the confidential counsellor. A decision is therefore made to disagree, in accordance with the rules in the internal regulations of the Committee.
    • This does not apply to companies with fewer than 20 workers, in which the employer is the internal Prevention Advisor.

    If the internal Prevention Advisor wants to take on all the tasks of the confidential counsellor, i.e. both prior information and the management of informal requests for psychosocial intervention (interview, intervention with a third party, reconciliation), nothing prevents them from training as a confidential counsellor and asking the employer to be appointed as such in accordance with the procedure.

    The contact details of the Prevention Advisor responsible for managing the internal service for prevention and protection at work must be written in the work regulations and in a place that is easily accessible to the workers (poster, intranet, etc.).

    Dismissal

    The employer may dismiss the confidential counsellor from their position with the prior agreement of all the workers' representatives within the Committee. This agreement protects the position of confidential counsellor within the company. However, the legislation does not provide protection against dismissal. This agreement is not required if the employer wants to terminate the contract of the worker acting as the confidential counsellor in addition to their usual position. However, the worker may subsequently contest the dismissal if they believe that it occurred as a reprisal for interventions carried out as the confidential counsellor.

    If agreement is not reached, the employer requests the advice of the Supervision of Well-being at Work inspection service, which will attempt to reconcile the parties.

    If reconciliation is not possible, the inspection service will issue an advice to the employer, who will communicate this to the Committee. The employer takes the final decision. If this decision does not follow the advice of the inspection service, the employer must notify the Committee of the reasons for this.

    If there is no Committee within the company, the trade union delegation will play this role. If there is no trade union delegation, the workers must be directly involved in this issue:

    • The employer must notify all the workers, on a board or via any other means of communication (by email, for example), of the identity of the confidential counsellor they plan to dismiss.
    • The workers have 15 days to write their comments in the register that the employer must make available to them, or to submit them to the internal service for prevention and protection at work (or the external service if the employer acts as the Prevention Advisor themselves).
    • The prevention service sends the comments to the employer, respecting the anonymity of the workers, together with its own advice.
    • No comment implies the agreement of the workers. The employer must contact the Supervision of Well-being at Work inspection service if they do not agree with the comments. The inspection service issues an advice if it cannot achieve reconciliation.
    • The employer provides this advice to the workers and informs them of the decision. The employer must provide reasons to the workers if this decision does not conform to the comments made by the workers and the advice of the inspection service.

    Furthermore, all the workers' representatives within the Committee may ask the employer to dismiss the confidential counsellor; the employer dismisses this person if they are in agreement. If there is no Committee within the company, the trade union delegation or otherwise the workers ask the employer.

    Training

    Deadline

    From 1 September 2014, each new confidential counsellor is required to have at least five days' training within the two years following their appointment.

    Persons designated as confidential counsellors before 1 September 2014 and who have already trained in this issue may continue to perform their role even if the training they took does not meet all the current requirements.

    Persons designated as confidential counsellors before 1 September 2014 and who have not previously trained may continue to perform their role provided that they followed the confidential counsellor training before 1 September 2016 or can demonstrate five years' relevant experience as a confidential counsellor on 1 September 2014.

    Content

    This training is in the form of four modules, as follows:

    • one half day module (at least three hours) on the legal framework relating to their role and statute,
    • one half day module (at least three hours) on psychosocial risks at work,
    • one full day module (at least six hours) on interview techniques,
    • one three-day module (at least 18 hours) on the management of problematic situations.

    The training costs, and the costs of travelling to and from the training centre, are payable by the employer. The time spent on this training is paid in the same way as work time.

    Training institutions

    The FPS Employment website contains a list of certain institutions that organise this training . You can find this list on this website:

    It is always possible to provide this training without being included on this list (this is the case with certain employers, for example). This is more a publicity measure and a gauge of quality associated with this training rather than authorisation.

    Institutions wanting to be mentioned on this list must apply (DOC, 99 KB) to the   Directorate General Humanisation of Work of the FPS Employment, Labour and Social Dialogue. The DG Humanisation of Work of the FPS then checks that the application is complete and sends it to the DG Supervision of Well-being at Work for examination, report and advice. If a positive advice is issued, the institution is included in the online FPS Employment list.

    Supervision

    Confidential counsellors are also required to improve their skills through annual supervision.

    Supervision involves an exchange of experiences of practical cases between confidential counsellors, supervised by a facilitator.

    All confidential counsellors must attend supervision, even those appointed before 1 September 2014.

    The legislation does not define the duration of the supervision, but to achieve its objective it should preferably take place over the course of a day.

    Incompatibilities

    Any legal incompatibilities exist to allow confidential counsellors to acquire the trust of the workers. The workers must be able to express themselves freely with this person.

    The confidential counsellor cannot:

    • have the position of Prevention Advisor-occupational physician;

      The occupational physician is responsible for declaring an inability to work during a medical examination. This could compromise the necessary trust that the worker must have in the confidential counsellor. This could have the consequence of making it difficult for the worker to ask and intervene in a situation involving, for example, harassment at work.
       
    • be a member of the workers' representatives or employer’s representatives on the works council or Committee, or be a candidate for social elections;
       
    • be a trade union delegate;

      It is important to distinguish trade union delegates from active members or militants who have not been elected or appointed to represent the workers but are members of trade union organisations. They perform certain tasks in this context. However, they do not have a mandate to represent the workers with the employer.

      These unionised workers can be designated confidential counsellors.

      If the confidential counsellor takes part in the consultation bodies to represent the employer or the workers, whether they are a candidate for the elections or part of the trade union delegation, their independence may be compromised as they could then choose the side of one of the parties to the social dialogue in the company. This risk could jeopardise the trust that the workers must have in them to be able to call on them and could give rise to a personal conflict of loyalty to the confidential counsellor himself.
       
    • be part of the management personnel;

      Management personnel are defined as the persons responsible for day-to-day management, who have the power to represent and commit the employer (i.e. perform legal acts on behalf of the employer), and members of the personnel directly subordinate to these persons when they also perform day-to-day management duties.

      Day-to-day management is effective, daily, autonomous and permanent management throughout the company or a part of it. These are the two highest levels in the hierarchy of the company structure responsible for day-to-day management. In companies where social elections take place, those persons who are part of the management personnel are on a specific list.

      Performing a management role may harm the autonomy required to act as a confidential counsellor. They could have the tendency to use the information they receive as a confidential counsellor as part of their management duties.

      The concept of management personnel is not the same as that of line management. Line management means management at both the higher and the lower level, from the manager to the team leader, who can give orders to their subordinates. This concept covers all management levels in the company hierarchy and, in other words, is broader than the concept of management personnel. A member of the line management may therefore act as the confidential counsellor, provided that they are not part of the management personnel.

    Incompatibilities for confidential counsellors appointed before 1 September 2014

    There is an incompatibility with the role of Prevention Advisor-occupational physician for persons appointed both before and after 1 September 2014.

    Confidential counsellors appointed before this date and who were delegates of the employer or the personnel to the works council or the Committee were able to continue to perform this role until the 2016 elections. They then had to choose between their position as a confidential counsellor and their candidature for the social elections. If they chose to stand in the elections, it was recommended that they resign from their role as confidential counsellor before being included on the list of candidates. If they were not elected, they could be re-appointed as a confidential counsellor.

    Confidential counsellors appointed before this date who at the time were part of the management personnel, could continue to perform this role after this date even if they continued to be part of the management personnel.

    Confidential counsellors appointed before 1 September 2014, who were trade union delegates at the same time, could continue to perform the role of confidential counsellor until the end of their mandate as a trade union delegate. If they were re-elected or reappointed as a trade union delegate after 1 September 2014, they could no longer perform their role of confidential counsellor given the legal incompatibility.

    Role

    • The confidential counsellor is responsible for all psychosocial risks at work, but their role is limited to the informal procedure.

    This means that:

    • It is not possible to submit an informal request for psychosocial intervention them. Requests should be submitted to the Prevention Advisor for psychosocial aspects.
       
    • The confidential counsellor cannot be involved in processing a formal request, as this task is the exclusive responsibility of the Prevention Advisor for psychosocial aspects, who has the expertise required to do so.

      If the worker agrees, the confidential counsellor receives the advice of the Prevention Advisor for psychosocial aspects, drafted after the submission of the formal request for situations in which they have previously been involved at the informal level.
       
    • The confidential counsellor must not carry out the initial risk analysis.

      However, the employer who carries out this risk analysis (with or without a Prevention Advisor for psychosocial aspects) may ask them to take part in its implementation.

      The confidential counsellor cannot therefore manage a risk analysis on their own, but may be involved in it depending on their skills. For example, they may inform the workers that the analysis has been carried out, organise meetings, etc.
       
    • They regularly consult the Prevention Advisor for psychosocial aspects. They have the right and even the obligation to maintain all the appropriate contacts for the performance of their duties.
       
    • At least once a year, they send the data on the repeated incidents they have dealt with to the Prevention Advisor for psychosocial aspects in writing for the evaluation of the prevention policy for psychosocial risks.
    • They provide the Prevention Advisor of the internal service with the anonymous data required for the drafting of the annual report of the internal service.
       
    • Where necessary, they keep the register of third-party facts and help to prepare the internal procedure.

    Participation in Committee meetings

    If the Committee's agenda contains a point on the prevention of psychosocial risks, the confidential counsellor must be invited to the meeting in an Advisory capacity. This would be the case during discussions on the procedures or on the results of the risk analysis and the evaluation of the preventive measures, or during Committee discussions on the handling of a formal request for psychosocial intervention that was mainly collective in nature.

    In companies or institutions in which several confidential counsellors have been appointed, not all these confidential counsellors have to take part in all the Committee meetings. However, there should be a procedure to ensure that the information that results from these meetings is passed onto them.

    The specific modalities on the participation of confidential counsellors in Committee meetings are determined by the employer and may be the subject of a specific point in the Committee's internal regulations.

    Independence

    The confidential counsellor performs their role fully independently. They act alone in the situations they handle, without receiving orders from anyone.

    When acting as a confidential counsellor, they report functionally to the internal service for prevention and protection at work. This means that they are part of this service when performing the role of confidential counsellor.

    However, the management of the internal service cannot give them orders relating to the performance of their tasks and does not have access to the individual data on the situations that the confidential counsellor is dealing with. The role of this management in relation to the confidential counsellor is limited to organising the management of the service (for example, organising the use of the premises, the reimbursement of the costs incurred by the position, etc.).

    In the context of their position as a confidential counsellor, they can also not receive orders from their line managers, who retain their management authority only for the role that this person normally performs alongside their position as confidential counsellor.

    They also have direct access to the person responsible for the day-to-day management of the company or institution.

    In practice, the confidential counsellor must also have the time they need to perform their duties and the appropriate premises to be able to work in strict confidentiality.

    The employer must provide them with the relevant information they need to perform their role, including the results of the risk analysis relating to psychosocial risks.

    Protection

    The confidential counsellor does not have specific protection against dismissal. However, the confidential counsellor cannot be placed at a disadvantage due to their activities in this role.

    Nobody may put pressure on the confidential counsellor when they are performing their duties (for example, to obtain information linked to their role).

    If the employer wants to remove the confidential counsellor from their position, they must obtain the agreement of the workers’ representatives on the Committee. If there is no Committee, they must obtain the agreement of the members of the trade union delegation, otherwise the agreement of all the workers.

    The confidential counsellor has the right to contact the Prevention Advisor for psychosocial aspects in order to carry out their duties if they feel the need to do so, including by sending them the request for intervention if it involves the employer themselves or a line manager and this could compromise their independence or disadvantage them.

    Professional secrecy

    The confidential counsellor is bound by professional secrecy. This means that in principle they cannot reveal to third parties any identifiable information brought to their attention during the performance of their duties.

    There are several exceptions to this principle:

    • To allow them to manage this informal psychosocial intervention as best they can, the legislation authorises the confidential counsellor to send information that they consider relevant for the smooth running of this psychosocial intervention to third parties.
       
    • The confidential counsellor may exchange information that is strictly necessary for the performance of their duties with the Prevention Advisor for psychosocial aspects at work (even without the agreement of the worker).

      The Prevention Advisor for psychosocial aspects and the confidential counsellor must both know the services in which they have been asked to intervene for a formal or informal request for psychosocial intervention or for the analysis of a specific work situation in which a danger has been detected. However, during this initial discussion, they do not need to exchange the identity of the persons involved in the requests. This may nevertheless become useful subsequently, when the Counsellor or confidential counsellor has to intervene in the services in question.
       
    • The confidential counsellor may exchange the information that is strictly necessary for the performance of their duties with other confidential counsellors (but they are recommended to request the agreement of the worker in advance).
       
    • The confidential counsellor may exchange the information they consider necessary with the Prevention Advisor-occupational physician so that the appropriate measures can be taken with respect to a worker, provided that this worker has given their consent to this exchange in writing.
       
    • They can decide whether or not to transmit information relating to their position when they are called on to testify in front of an investigating judge or a court judge (in principle not the police services, the Supervision of Well-being at Work inspection service or the labour inspectorate).