In a recent ruling of the Court of Noord-Holland, the Subdistrict Court assessed whether the non-continuation of the employment agreement of a female employee who was unfit for work was the result of serious culpability on the employer's part. The female employee concerned had reported ill as a result of (sexual) harassment in the workplace. It was not in dispute that there had actually been sexually transgressive behaviour, but it was in dispute whether the employer had done enough to prevent the (sexual) transgressive behaviour within the company.
Description of the Situation
On 20 May 2022, an employee (who worked under a fixed-term employment agreement as a waitress at a chateau) reported sick as a result of an incident of (sexually) transgressive behaviour in the workplace by a chef. With reference to this incident the chef was suspended, and after a couple of days he quit of its own accord. The employer then acknowledged, in an e-mail to the employees within the company that it had recently become aware of the chef's behaviour and that there had been talks with him. Although the employee concerned had started her reintegration process after two months of sickness, ten days later she again reported sick. Next, on 24 September 2022, the employer informed the employee that her employment agreement would not be renewed.
The employee claimed that her unfitness for work and the stagnation of the reintegration were the reasons for the non-renewal of her employment agreement. She went to court and claimed a fair compensation as well as material and non-material damages.
Opinion of the Subdistrict Court
The Subdistrict Court held that this is a situation in which the employee has become unfit for work as a result of the employer’s culpable insufficient care for the working conditions, and serious neglect of the reintegration obligations.
Insufficient care for working conditions
Around February 2022, the first rumours started about the chef's behaviour at previous employers, and the first report of transgressive behaviour was made to the employer in April 2022. Given the above, the Subdistrict Court is of the opinion that the employer should have done more after the first report than merely have talks. The employer should have instructed a confidential counsellor or (independent) complaints committee to examine the complaint at the time, and should have suspended the chef concerned, or should have ensured that a close eye was kept on him in the workplace.
Neglect of reintegration obligations
The employer maintained that the employee was cooperating insufficiently in her reintegration. However, the employer never called the employee to account for this, and also did not apply to the UWV for an expert opinion. Since 17 August 2022 the employer has failed to respond to e-mails of the employee, in which she asked for more consideration of her health situation. According to the Subdistrict Court, the foregoing means that the employer is also to blame for the difficult progress of the reintegration.
Reasons for non-renewal
The employer’s arguments that the end of the employment agreement by operation of law, the start of the low season, and uncertainty about corona were the reasons for the decision not to renew the agreement, were not considered plausible by the Subdistrict Court.
Compensation awarded
The Subdistrict Court awarded the employee a fair compensation of €5,000. In addition, the employer owes the employee damages in the amount of €4,638 and non-material damages in the amount of €4,000.
Conclusion
This ruling confirms that an employer cannot simply decide not to renew a fixed-term employment agreement. If the reason for the non-renewal can be traced back to seriously culpable acts of the employer (in this case: the failure to ensure a safe working environment and the neglect of reintegration obligations), the employer may be ordered to pay both a fair compensation and material and non-material damages. The same goes for the failure to renew a fixed-term employment agreement for a discriminatory reason (such as gender or pregnancy). Prudence is especially in order when it comes to not renewing an employment agreement of an employee who became ill due to an incident involving (sexual) transgressive behaviour. It is important in this context for you, as an employer, to be certain to address reports of transgressive behaviour within your company promptly, and to offer an ill employee sufficient support during the reintegration process.
Do you have a situation involving possible (sexual) transgressive behaviour, and/or do you wish to prepare a policy or have your policy reviewed? Please contact one of our attorneys.
