Is a confidential advisor mandatory?

A confidant is not yet legally required

For most employers, a confidant is currently not legally required. The Working Conditions Act requires that an employer implements policies against psychosocial work-related stress — bullying, sexual harassment, aggression, discrimination and work pressure (article 3 Working Conditions Act) — but this provision does not name a confidant as a mandatory component of that policy. An employer must therefore take action against these forms of stress, but the law does not prescribe which instrument should be used for this purpose. In practice, many organisations nevertheless opt for a confidant, because it is a recognisable and workable way to fulfil that duty of care, and because employees often request one.

This may change. Before the Senate is a private members' bill (35592) that seeks to make a confidant for unwanted conduct in the workplace mandatory. As long as this bill has not been adopted and entered into force, the current situation applies: no explicit legal obligation, but a duty of care that in practice often leads to the same result. It is also important to distinguish this from the internal reporting channel for breaches under the Whistleblower Protection Act: that is a separate procedure, with its own obligation from fifty employees onwards, regardless of whether a confidant has been appointed. A reporting channel for integrity matters does not replace a confidant for unwanted conduct, and vice versa.

Where this follows from: article 3 Working Conditions Act and bill 35592

The fact that there is currently no general legal obligation follows from the text of article 3 of the Working Conditions Act itself: it requires policy, not a specific official. That there is movement on this is evident from the private members' bill 35592 that is currently before the Senate and that aims to make the confidant mandatory. As long as that process is not completed, the status of a legal obligation has not yet been established.