Sexual transgressive behavior in the workplace

Several weeks ago, it was revealed by Ajax that Director of Football Affairs Marc Overmars was leaving effective immediately. The basis for the departure was the sending of cross-border messages to several female colleagues over an extended period of time. Even more recently, Gerrit van de Kamp, president of police union ACP, resigned after several reports indicating cross-border behavior. Since the BOOS program's revelations about abuses at The Voice, more people are speaking out about sexual transgressive behavior within the company where they work. What responsibilities do you have to protect your employees from sexually transgressive behavior? And can you sanction this behavior with summary dismissal? We tell you in this blog.  

Safe working environment

You have an obligation under good employment practice and the Working Conditions Act to ensure the health and safety of your employees. In doing so, you must have a policy aimed at preventing and limiting (if possible) - among other things - sexual harassment. Both physical and verbal harassment must be included in this policy.

For example, you can create a conduct policy that explicitly states that you have a zero-tolerance policy regarding sexually transgressive behavior. You should communicate to your employees that this policy is in place, and it may be advisable to have employees acknowledge receipt and knowledge of the policy. Your policy may include where employees can report when they are victims or witnesses of transgressive behavior. A confidential advisor can contribute to the safe working environment you need to create. If you designate an independent person within or outside the organization for this purpose, the step for employees to report any conduct is reduced.

Incidentally, in addition to creating a behavioral policy, it is also possible to take an even more active role in combating such behavior. This could include facilitating defensibility training and informational meetings regarding transgressive behavior. During informative meetings, you can go through the policy and emphasize that certain behaviors are not acceptable, such as (consciously or unconsciously) abusing a position of power.

Dismissal for sexually transgressive behavior

When an employee has behaved in a sexually transgressive manner, it is easy to imagine that you would want to dismiss them (with immediate effect). We find several examples of this in case law.

Dismissal does hold up

An employee who unexpectedly gave a colleague a kiss on the mouth was summarily fired. The colleague was totally disgusted by this behavior. In addition, the employee sent sexually oriented messages to another colleague. The employer found this unacceptable and used a handbook that clearly described the consequences of such behavior. The subdistrict court ruled in this case that the employee should refrain from such behavior based on good employee conduct. Because the employee nevertheless behaved in this way, he violated his employer's trust to such an extent that the employer could not be required to continue the employment contract. The summary dismissal therefore stood.

However, securing a dismissal in all cases of sexually transgressive behavior is not yet so easy, according to some rulings.  

Dismissal does not hold up

An employee was summarily dismissed for transgressive behavior and sexual harassment of two female colleagues. Later, two other female colleagues also testified about the employee's behavior. In all cases, the employee increasingly maneuvered himself into the privacy of the female colleagues and approached them in an inappropriate manner. This was done by sending emails, making phone calls, trying to make appointments outside working hours or making direct comments. The statements came from subordinate employees, who were dependent on him. The subdistrict court considered that the employee penetrated the employees' private lives, he abused his position in the process, and the women did not dare to resist. Nevertheless, the subdistrict court did not consider the conduct sufficient for immediate dismissal. The sub-district court considered that although there had been cross-border behavior, the employee's motives were not primarily sexual. The subdistrict court did subsequently dissolve the employment contract on the grounds of serious culpable conduct on the part of the employee without awarding any transitional or fair compensation.

Other relevant circumstances

In addition to the conduct of the employee you wish to dismiss, all other circumstances are important to arrive at a legally valid dismissal. For example, you must have conducted sufficient investigation to be able to assess whether there is an urgent reason for summary dismissal or dissolution of the employment contract. In addition, the atmosphere prevailing at an employer can be decisive. An employer who allows sexually oriented messages and racist messages in a group app within the workplace cannot simply blow high off the moral high ground when an employee exhibits certain transgressive behavior.

Conclusion

Our society increasingly hears about sexually transgressive behavior. The attention this issue is currently receiving could result in the assessment of the boundaries of sexually transgressive behavior shifting, making a dismissal (immediate dismissal) more likely.

In any case, you should ensure that you have a proper and visible policy, including its enforcement. In this way, you can prevent or minimize sexual transgressive behavior in your workplace. It is also the employer's responsibility to create a safe working environment.

Please feel free to contact Lonneke Nouwen (l.nouwen@pvdb.nl) or Bas Blaauwhof (b.blaauwhof@pvdb.nl) if you have any questions about this topic.