Recently, there has been increasing social attention for the risks of power relations in the workplace (“MeToo”). An important and much-discussed risk in this context is (sexual) transgressive behaviour. In practice, many employers find it extremely complicated to do “the right thing” when reporting transgressive behaviour. Because how to deal with a report? And when does a suspension or instant dismissal come into the picture? In this blog I discuss the most important rules and points of attention to prevent a fiasco a la Volt/Gündoğan within your company.
The rules: prohibition of (sexual) harassment & employer’s responsibility
Article 7:646 of the Dutch Civil Code includes an explicit prohibition on (sexual) harassment. Is there sexual harassment by an employee? Then this can be an urgent reason for you as an employer to proceed to summary dismissal (article 7:678 paragraph 2 sub f of the Dutch Civil Code). In short: also on the basis of the law, every employee must refrain from inappropriate behaviour. At the same time, as an employer you have a duty of care under the Working Conditions Act to prevent or limit the risk of (sexual) undesirable behavior by means of a policy. This means, among other things,
That you must have a policy within your company with clear rules of conduct and a complaints procedure. But beware: having a policy is not enough. It is also important that you communicate the rules of conduct clearly and several times to all employees within the company and that all managers create a culture that is in line with the policy and the rules of conduct: “ practice what you preach ”. This follows , among other things , from a judgment of the Supreme Court of 24 June 2010 .
Dismissal & transition payment in the event of transgressive behaviour
In that judgment, the Supreme Court ruled that if there is question of sexually transgressive behavior by an employee, this does not automatically mean that there is serious culpable conduct. As a result, the employee may still be entitled to a transition payment in the event of dismissal due to sexually undesirable behaviour. This is because the right to a transition payment upon dismissal is the starting point; there is no entitlement to a transition payment only in the event of seriously culpable conduct.
In its ruling, the Supreme Court indicates, among other things, that the circumstances of the case must be taken into account when assessing whether there has been seriously culpable conduct insofar as they influence the culpability of the employee’s conduct. The Supreme Court explicitly points to an employer’s responsibility to prevent transgressive behavior in the organization as much as possible and to act against it if there are signals. Are you doing too little as an employer? In that case, the employee may not act seriously culpably, with all the consequences that entails.
As an employer, you should therefore not only ensure a clear policy, clear rules of conduct and a complaints procedure. It is even more important that all employees are familiar with the rules and that the rules are acted upon in practice. This is your responsibility, according to the Supreme Court.
A report: what to do in practice?
Despite the existence of policy and rules of conduct, it appears in practice that it is extremely complicated for employers to do “the right thing” if there is a possibility of transgressive behaviour. For example, if a report has been made, whether or not anonymously, about undesirable behavior by a colleague. The employer or the HR department usually wants to intervene immediately – with the best intentions. And that’s when things often go wrong.
An (anonymous) report or a single suspicion of transgressive behavior almost never justifies immediate suspension or immediate dismissal. In such cases, due diligence takes precedence over time. As an employer, therefore, take the report seriously: start an (external) investigation and always apply both sides. Only in this way can you as an employer establish the facts as accurately as possible. Does this investigation show that there is question of transgressive behaviour? Then that is the moment at which you can take far-reaching employment law measures.
In this way, you as an employer do not only act in the interest of the employee with the complaint. At the same time, you provide a safe working environment for the other employees, including the defendant. If you only take appropriate measures once the facts have become sufficiently clear after a careful investigation, you will prevent the accused from being declared an outlaw. And that is just as important.
Act carefully!
If you, as an employer, act carelessly despite your good intentions, there is a good chance that you will not achieve what you wish to achieve. Then you must pay your employee a transition payment, a suspension is lifted through summary proceedings, an instant dismissal is annulled by the sub district court judge and/or there is unrest in the workplace.
A consequence that should not be underestimated may be that a (fear) culture arises in which well-founded reports are not made. In short: do not act exclusively with good intentions, above all act carefully and appropriately! Questions about your specific situation and the possibilities? Feel free to contact us. We think in terms of the best solutions.
