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?
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.
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:
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:
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.
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.
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.
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:
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.
Do you need help drafting a resolutive condition, or do you have any other questions in response to the above? We will also be happy to assist you in disputes with employees or the drafting of staff policy and terms and conditions of employment. Please contact us!
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