On 4 September 2024, the Court of Amsterdam rendered a judgment on a dispute between a director and his employer, a staff planning and management consultancy. It was the director who asked the court to rescind his employment agreement, after the transgressive behaviour he had been accused of had not become established.
Background
The director had been employed by the consultancy since August 2020. In November 2023, reports came in of transgressive behaviour by the director. The employer reacted by suspending the director, and by informing all employees by e-mail the next day that reports had come in about the director and that an external investigation would start.
This investigation focused on several accusations, including remarks with sexual overtones, sending a sexually explicit message to a student assistant, and intimidating behaviour. However, the investigation report concluded that most accusations could not be confirmed due to a lack of evidence and contradictory statements. The director only admitted to an affair with a colleague after a company party, but this colleague had not reported any transgressive behaviour personally. The director argued that there had been seriously culpable acts or omissions on the employer's part, and took the case to the Subdistrict Court.
What were the considerations of the Court?
The Subdistrict Court allowed the director’s application and rescinded the employment agreement, because the many allegations from both sides had already resulted in an unworkable situation. The Court established that the employer had acted seriously culpable. The consultancy had suspended the director immediately and had disclosed this to all employees, without giving the director a chance to respond to the allegations. During the investigation he hardly received any information either. For example, he was only informed of the allegations against him more than two months later. Even after it became apparent that the allegations were not established in the investigation, the employer kept insisting that they were true. Throughout this process, the employer did not blame itself for anything, although its efforts to prevent transgressive behaviour in the workplace had been insufficient.
Eventually, the Court awarded the director a fair compensation of €100,000 and a transition fee of €14,452.82
Meaning for Practice
This ruling underlines the importance of care and transparency when dealing with reports of transgressive behaviour in the workplace. Employers should not only take seriously and investigate the reports of complainants, but should also keep an eye on the interests of the accused. If they fail to do this, this may lead to the opinion that the employer has been seriously culpable. In the case above, having in place and carefully following a good policy could have led to a different outcome.
We recently prepared a checklist about the way in which internal policies can be set up and what a procedure for handling complaints should ideally look like in practice: Checklist: Complaint handling Transgressive behaviour in the workplace. In this checklist we explain how employers can establish a good policy that not only reduces risks, but also safeguards the legitimate interests of both the complainant and the accused.
We will be happy to help you if you have questions about the checklist or other questions around this topic. Please feel free to contact Marnix van Berckel Smit or any of the other colleagues from our Employment Law team.