Monday, June 24, 2024

Periodic application for Certificate of Conduct: a tool for employers

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A Certificate of Conduct (VOG) is a snapshot and sometimes provides only false security. How can employers ensure to get more security about the reliability of their staff?

By Jan Dop and Erika van Zadelhof

When hiring new staff, you as an employer may request a new employee to provide you with a Certificate of Conduct (Verklaring omtrent het gedrag; VOG). It is advisable to mention this in the job posting. A Certificate of Conduct is a certificate proving that a job candidate’s judicial record is not an objection for the performance of the function in question.

The Certificate of Conduct is applied for by the employee at the Justis Service, the screening authority which is subject to the Ministry of Justice and Security. The employer guides the (prospective) employee in this process: for example, as an employer, you need to indicate how the Certificate of Conduct can be applied for (in writing or digitally) and which screening profile has to be chosen.

Assessment by screening authority Justis

Starting point for the Certificate of Conduct is the information recorded in the Judicial Documentation System (JDS, also referred to as ‘criminal record’). If the applicant has no criminal record, a Certificate of Conduct will always be issued. If the applicant does have a criminal record, Justis will use the screening profile to assess whether the criminal offences constitute an objection to performing a specific job. Someone who is guilty of a sex offence in the past has little chance of obtaining a Certificate of Conduct if they want to work in teaching, while chances are considerably higher for an administrative job at a financial institution.

Depending on the nature of the job, Justis will assess whether the application meets two criteria:

  1. The objective criterion: Would the offence committed, if repeated, be an obstacle to performing the job, given the risk to society?
  2. The subjective criterion: Here, the applicant’s interest (a new job) is weighed against the risk to society (possible danger if someone with a criminal record joins a particular job or company).

GDPR

The General Data Protection Regulation sets rules regarding privacy. If you ask (prospective) employees to provide a Certificate of Conduct, you are processing their personal data. It is therefore important to comply with the requirements of the GDPR:

  1. The employer must have a legitimate interest in the request for a Certificate of Conduct.
  2. The Certificate of Conduct must be a necessary part of the screening of employees and applicants for the job in question. That is, the employer does not have less intrusive means of obtaining this information.
  3. The employer must inform the applicant or employee in advance about the application for a Certificate of Conduct.

False security

In most cases, the employee’s provision of a Certificate of Conduct at the start of the employment will be sufficient. However, as an employer, you should keep in mind that a assessment for a Certificate of Conduct is a snapshot. It only assesses whether there are any objections to its issuance as a result of offences committed in the past. There is a risk that the employee may commit offences after the Certificate of Conduct has been issued that the employer is unaware of. Also, only offences that were actually committed are included, whereas a suspicion of a criminal offence is not included in the assessment. This is why the Certificate of Conduct can be seen as false security.

Continuous screening

As in certain industries it is very important for employers to be sure that employees remain of impeccable conduct once they have been hired, continuous screening is laid down by law. Currently, this applies, for example, to people working in the taxi industry or in childcare. The Justis Service continuously checks whether there are any changes to the criminal record and notifies the supervisor of the relevant industry if it is provisionally assessed that there is an impediment to performing the job. The supervisor will pass this information on to the employer. The employee concerned will then have to apply for a new Certificate of Conduct.

Periodic application

Even in other industries, it may be advisable for you as an employer to ensure that there are still no objections to the performance of a specific job by your employees. You may choose to require all your employees to provide you with a Certificate of Conduct periodically (e.g. every year). In certain industries, such as aviation, security or ICT, it is essential for employers to ensure that employees are continuously of impeccable conduct.

Naturally, a periodic application for all your employees involves costs. For the vast majority of professions, it is not laid down by law who is to bear these costs, but it could be argued that these costs should be borne by the employer based on good employment practices. Since 1 January 2020, these costs can be reimbursed untaxed, without affecting the free space under the work-related cost scheme.

Please note that as an employer, you cannot be sure that a periodic application for a Certificate of Conduct will cover all risks: in the interim period, an employee may still commit criminal offences that you can only become aware of (much) later. So the problem of false security still plays a role.

Termination of employment

Can you dismiss your employee if the (periodically) requested Certificate of Conduct is not provided? It is possible to agree upon a resolutive condition, which says that the employment contract will end if a Certificate of Conduct is not or no longer available. However, it is essential that this condition is formulated correctly and conclusively.

The Supreme Court has ruled that an employer may only include a resolutive condition if three conditions are met:

  1. The resolutive condition must not violate the closed system of dismissal law;
  2. The fulfilment of the resolutive condition does not depend on the subjective judgment of either employer or employee;
  3. Once the resolutive condition has been fulfilled, the employment contract can no longer actually be fulfilled (’empty shell’).

If the employee has deliberately concealed a criminal offence, and the employer is of the opinion that this hinders the proper performance of the job, the employer can also request the subdistrict court to dissolve the employment contract, for example on the basis of the h-ground.

About the authors:

Jan Dop

Russell Advocaten Partner. Jan Dop is a specialist in employment law and corporate law. jan.dop@russell.nl +31 20 301 55 55

Erika van Zadelhof

Erika van Zadelhof / Lawyer. Erika gives advice on employment law, employee benefits and dismissals erika.vanzadelhof@russell.nl+31 20 301 55 55

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