Sexual transgressive behavior in the workplace: is it seriously culpable?
Sexual transgressive behavior in the workplace unfortunately occurs regularly. As an employer, you would think that this is an irrefutable reason for dismissal and that the behavior is seriously culpable, so that no transitional compensation is owed to the employee and the employee cannot claim unemployment benefits. However, practice is more recalcitrant. Case law shows that there is discussion about the (serious) culpability in the case of sexually transgressive behaviour. The role of the employer may be decisive in this respect.
In this article we first discuss when there is (serious) culpability. Next, we discuss the developments in case law concerning sexually transgressive behavior in the workplace. Finally, we will discuss the steps that every employer can take when transgressive behavior occurs in the workplace.
When is sexual harassment and transgressive behavior seriously culpable?
If there is evidence of (seriously) culpable behaviour, the employer can have an employee’s employment contract dissolved through the courts. There must be culpability. This means that the employee must be at fault for his/her actions or omissions. All circumstances of the case are reviewed by the judge when the employer requests the dissolution of the employment contract. For example, the position of the employee, the frequency of the behavior, the policy of the employer, the public nature of the impermissible behavior, etc. are considered.
It follows from case law that one form of culpable conduct is sexual harassment and transgressive behavior. Whether it is “seriously” culpable depends on the further circumstances. It depends on the seriousness of the act and against whom it is directed, as well as the concrete warnings or instructions from the employer in this regard.
Case law on sexually transgressive behavior
It follows from case law that judges do not agree on what conduct is seriously culpable and what conduct is merely culpable. This is an important difference. In the event of seriously culpable conduct, an employee is not entitled to transitional compensation and unemployment benefits. Below, we will discuss two legal cases concerning sexually transgressive behavior.
A case concerning the dismissal of a senior lecturer in exercise science is before the Supreme Court for the second time. In the first instance the subdistrict court ruled that there was serious culpability. Several students reported that they did not feel safe. The teacher had been warned in 2006 and 2010, prohibiting any form of physical contact. Nevertheless, the school received reports again. One of the reports concerns a buttock slap to a student and the other report concerns a student to whom the teacher twice gave a full body massage. This was followed by a dismissal. Given the behavior and dependent relationship between the teacher and the students, as well as the earlier warnings, the subdistrict court dissolved the employment contract without transitional compensation.
The Court of Appeal of Den Bosch, on the other hand, overturned the decision of the subdistrict court and dissolved the employment contract with the award of transitional compensation. The Court of Appeal was of the opinion that the facts and circumstances stated were insufficient for the conclusion that the employee was seriously culpable. One of the reasons for this is that the school itself would have had a share in what had occurred. The school has not been clear about what is and what is not acceptable in terms of transgressive behavior. The school would have thought too easily that in the absence of new signals “it would be all right”.
The case subsequently reached the Supreme Court. The Supreme Court set aside the order of the court of appeal and referred the case to another court. One of the reasons for this was that the Court of Appeal had not indicated why the lack of clarity regarding the limits to be observed was relevant to the seriousness of the reproach that could be made against the teacher. Nor was it shown that the failure to monitor the teacher detracted from the seriousness of the teacher’s conduct.
The Arnhem-Leeuwaarden Court of Appeal also ruled that there was no question of serious culpability. According to the Court of Appeal, the high exceptional provision of Section 7:673 subsection 7 under c of the Dutch Civil Code (which states that there is no entitlement to transitional compensation in the event of seriously culpable conduct) was not met. There is a question of culpable behavior in view of the biltik and the massages, but this is not seriously culpable. The massage was given in 2010 in violation of the ban. However, the massage lessons were part of the curriculum, it served a didactic purpose in the context of the profession and the school was aware of this. According to the court, the above makes the sexually transgressive behavior culpable, but not seriously so.
As mentioned, the case will go to the Supreme Court again. Thus, it remains unclear what is meant by seriously culpable behavior. It is clear that all circumstances play a role, including how the employer acted. In view of the above, the advice to employers is to take the steps listed below.
What steps can an employer take in the event of sexually transgressive behavior?
Rules of conduct regarding (sexually) transgressive behavior in the workplace
A first step employers can take is to draft a policy with clear rules of conduct. These rules of conduct should describe what conduct is inadmissible, i.e. sexually transgressive conduct and what sanctions are imposed when this conduct occurs.
Investigation after suspected (sexually) transgressive behavior in the workplace
If there is a suspicion that this behavior is occurring, it is recommended to conduct a careful investigation and to suspend the employee – if necessary – in the meantime.
Sanctions after (sexually) transgressive behaviour in the workplace
Then, depending on the situation, it can be determined what sanction is appropriate. This could be a written warning or termination of the employment contract.
When giving a written warning, it is very important that it is made clear in the warning which behaviour is undesirable and what the consequences are if the behaviour occurs again.
Monitoring the employee after (sexually) transgressive behavior in the workplace
Finally, the previously discussed judgments show that, depending on the circumstances, it may be beneficial to monitor an employee’s behavior or provide the right guidance to ensure that the sexually transgressive behavior does not recur.
Need help with transgressive behavior in the workplace?
Case law is currently unclear about when sexually transgressive behavior in the workplace is seriously culpable. This makes it all the more important for employers to take the right steps. Don’t wait, set up a policy, take preventive measures and take timely action.
Do you need help drawing up a policy or do you have a situation of transgressive behavior? Contact Peter Verheijden and Lisa Kloot of LVH Advocaten in Rotterdam. These labor lawyers are happy to help you. They can draft a policy for you, they can assess situations of sexual transgressive behavior and implement sanctions.
