Following the media stories about serious misconduct at Studio Sport, Mariëtte Hamer, the government’s sexual transgression commissioner, has issued advice on a reporting channel in the culture and media sector. Curiously, this advice completely ignores the Whistleblower Protection Act.
On 10 March, an article appeared in De Volkskrant about harassment, sexism and exclusion at the public television sports show ‘Studio Sport’ (Dutch language). On the same day, NRC reported on this as well (Dutch language). Women in particular were targeted, but also employees with a migrant background. Host Tom Egbers was named (Dutch language) as one of the perpetrators. State Secretary for Culture and Media Uslu then asked Mariëtte Hamer, the government’s commissioner for sexually-transgressive behaviour, to quickly issue an advice on a reporting channel for unwanted behaviour (Dutch language) in the culture and media sector. An organization called ‘Mores’ currently fulfils this role. However, the independence of Mores was questioned, as the wife of presenter Tom Egbers chaired it. She has since stepped down from the board and not long after the remaining board members stepped down as well.
Actually, this was a peculiar question from the state secretary. After all, since 18 February, the Dutch Public Broadcasting Organization NPO is already legally obliged to have an independent reporting channel where serious misconduct can be reported. And those reports must then be followed up by independent persons. This follows from the Whistleblower Protection Act.
Meanwhile, Hamer has issued her opinion (Dutch language). But it does not mention the Whistleblower Protection Act. In her advice, Hamer reiterates that in the cultural and creative sector, various risk factors are present in the workplace, such as skewed power relations, precarious employment contracts and a culture of competition, performance or silence, or combinations thereof. She then elaborates on the role of Mores.
Mores’ core activity is to provide a whistleblowing channel for reporters who have (had) to deal with transgressive behaviour in the culture, creative and media sectors. The reports are then handled by bureau ‘De Vertrouwenspersoon (the Confidential Counsellor)’, which works with a permanent group of freelance confidential counsellors. They offer a listening ear and help them find the right channels. Indeed, this seems to us to be the role of the confidential counsellor.
So Mores itself does not handle complaints or conduct investigations; it only supports reporters by providing a listening ear and advice. The confidential counsellors do not communicate with the Mores board about this. However, the board receives an anonymised report once a quarter. This report aims to advise the sector and create awareness. Thus, workshops and presentations are given by the confidential counsellors. Hamer says Mores is a last resort option for reporters who had nowhere else to go. Indeed, in principle, the responsibility to offer confidential counsellors to employees lies with employers in the sector. We think this is a fair observation.
The report indicates that even well before the board resigned in March 2023, there was ambiguity about the role and duties of the board in the sector. It indicated, for instance, that the reporting channel creates a false sense of impartiality, partly because the sector provides (part of) the funding, all board members work or have worked in the sector and many people in the industry know each other. It was also alleged that the board was defensive around concerns such as diversity and inclusion and the accessibility and reachability of Mores. Furthermore, there was a need for structural, periodic feedback on reports to get a good sense of the issues.
Whereas in response to #MeToo in 2018, a committed group of representatives of producers and creators from the industry rose up to establish Mores, further professionalisation of Mores is now needed, including in the area of governance, especially given the rapid increase in the number of affiliated clusters of organisations and the continuing flow of reports of (sexually) transgressive behaviour in the sector. This professionalisation, according to Hamer, cannot wait any longer.
The recommendations can be logically deducted from the observations:
- Define the role and the duties of the board; clarify where the role of the board differs from the role of the confidential advisers.
- Seek new board members appointed on the basis of their expertise and no longer as representatives of the employers
- Grow towards a model with a supervisory board, an executive board and a director with an organisation, responsible for the day-to-day operations.
- Establish an Advisory Board from the member clusters to advise the board and management based on knowledge and experience of the sectors.
- Ensure that the expertise and management of the confidential counsellors is better supervised.
- Communicate better with the member organisations and further consider the supporting and facilitating role of Mores.
- Pay attention to the (telephone) accessibility of the confidential counsellors.
- Consider structurally anchoring sectoral and sub-sectoral complaints procedures so that reports and complaints are actually followed up within the organisations that are responsible for handling them. This should be organised by employers and their sector organisations.
- Investigate how Mores can be financed on a more permanent and structural basis, considering the increasing workload and scaling up.
- Seek cooperation with other reporting channels in other sectors, including the sports sector.
So far, this seems like solid advice to us. What is remarkable, however, is that the advice completely ignores the developments resulting from the Whistleblower Protection Act. After all, all employers with 50 employees or more will have to set up an independent reporting channel and follow-up of reports of serious wrongdoing in the course of 2023 anyway. So why is another industry reporting channel needed? For smaller employers, perhaps? This is not addressed at all in the opinion.
Perhaps this is because the Whistleblower Protection Act is not yet on the radar of many organisations or because the link to unwanted behaviour is not made. One problem is that it is not clear in advance to an individual reporter whether the events are considered as serious wrongdoing and their report should therefore be labelled as a whistleblower report. This ultimately seems to be the case here. After all, there is a pattern here of acts and ommissions that affected multiple people and posed a threat to their safety.
However, you only see the pattern when you receive reports from multiple employees. One individual report of unwanted behaviour is currently not seen as serious wrongdoing and therefore not labelled as a whistleblower report. Thus, individual reporters do not know whether they are protected from retaliation and will therefore keep quiet. Our advice to employers is therefore to set up a reporting channel for all breaches of laws and regulations, internal rules and unethical practices, including unwanted behaviour. And to legislators, we advise broadening the definition of serious wrongdoing that constitutes a whistleblower report. This will ensure everyone knows where they stand.
And the NPO should obviously hurry up with launching such a reporting channel; it seems they are currently not complying with the law. They are not the only ones, by the way. And this advice from the government commissioner does not help.
Want to know more about how the Whistleblower Protection Act may also apply when reporting unwanted behaviour? Then follow our course or request our whitepaper.
