Tackling Transgressive Behaviour in the Workplace

A court recently ruled against an employer for having observed insufficient care in tackling sexually transgressive behaviour in the workplace.[1] What else is new? It is (rightly) clear nowadays that employers are largely responsible for countering sexual harassment and other forms of transgressive behaviour in the workplace.

In our employment law practice, we are regularly asked how this responsibility – or ‘duty of care’ in legalese – should be given shape. In this article we will give you some concrete tips, taking the above ruling as an example.

In brief, the situation on which the Court of Noord-Holland recently ruled is as follows. An employee, who worked under a fixed-term employment agreement as a waitress at a chateau, reported transgressive statements made by the chef to her superior. Soon afterwards there was an incident involving, according to the employee, sexually transgressive behaviour by that same chef. The chef was suspended and quit of his own accord one week later. The employee was very shaken and reported sick. Although she had started her reintegration process two months later, she reported sick again after ten days as a consequence of PTSD and burn-out complaints. Eventually, the employer notified her that her employment agreement would not be renewed.

The employee then brought a legal action in which she asked the Court to order her former employer to pay her fair compensation as well as damages for the material and non-material harm she had suffered.

The Court established that rumours about the chef were already circulating a few months before the incident, and that several reports had already been made to the employer. The employer had had a number of talks with the chef on account of this. However, the Court considered this to be insufficient. The employer should (at least) have had the complaint examined by a confidential counsellor or a complaints committee, and could have imposed behavioural training on the chef, or could have given him an official warning. The Court held that the employee had become unfit for work as a result of the employer’s insufficient care for safe working conditions. This was held to be seriously culpable behaviour. Regarding the reintegration, the Court established that the employer had failed to respond to the employee's requests to adjust the working environment, and had already decided at an early stage to await the end of the employment agreement. This too was seen by the Court as seriously culpable behaviour.

Clearly, in the opinion of the Court the employer’s approach in this case left much to be desired. The employer was therefore ordered to pay the employee fair compensation as well as damages for the material and non-material harm she had suffered. How could the employer have done things differently here?

The first, and possibly most important, step is to raise awareness about transgressive behaviour and make it a topic of discussion. Make your staff aware of the behaviour that is expected of them, of what is unacceptable, and of the sanctions attached to such behaviour. Include rules of conduct in a protocol or staff handbook, and organize meetings or trainings on this topic. Make sure as well that this is not a one-off event, but that the topic remains top of everyone’s mind, for example by periodical refresher trainings, online questionnaires, etc.

Besides, it is important that employees who encounter undesirable behaviour have an accessible place to turn to, such as a confidential counsellor or a complaints committee. Anyway, a recent bill stirs up expectations that all employers will soon become obliged to have an (external) confidential counsellor.[2] A few tips are in order here: when choosing internal confidential counsellors, you should avoid employees in roles that may give rise to conflicts of interest, such as HR staff, board members, or managers in general. In addition, it is advisable to have at least one external confidential counsellor for situations that require an independent gaze from the start. Finally, access to the confidential counsellor should be made as low-threshold as possible, for example by having the counsellor personally introduce herself to all employees, or scheduling periodical short meetings with her to remove the first threshold. The counsellor should also be approachable by everyone, including temporary workers such as trainees, and her contact details should be easy to find.

In situations of transgressive behaviour in the workplace, the focus can quickly shift to the accused and the relationship with the employer. However, you should not lose sight of the interests of the reporting person. The employer has a duty of care and is expected to ensure not only a safe work environment, but also sufficient attention to the well-being of the reporting person. As an employer, you should remain in close contact with the victim, possibly via a confidential counsellor, in order to make the victim feel heard and supported. You should ensure that if the victim reports sick, a company doctor is involved and re-integration is actually made possible, e.g. by offering a temporary different work environment and coaching or other mental care. The ruling of the Court of Noord-Holland is just another confirmation that action against the accused is not where the employer's responsibility ends.

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[1] Court of Noord-Holland, 3 May 2023, ECLI:NL:RBNHO:2020:4355.

[2] Lower House of Parliament, ‘Private Member's Bill of MP Maatoug for the Mandatory Appointment of a Confidential Counsellor for Undesirable Behaviour in the Workplace’. The bill was adopted by the Lower House of Parliament in May 2023 and is now under discussion in the Senate.