Transgressive Behaviour: Passive Employer Commits Seriously Culpable Act

• An employer acted in a seriously culpable manner by failing to intervene in time and by failing to properly record complaints about inappropriate behavior by a manager.
• The employer did not provide the employee with any concrete points for improvement and responded slowly after reports of an unsafe working atmosphere, which led to a disrupted employment relationship.
• The court awarded the employee a fair compensation of €34,000, partly because the complaints procedure had not been properly followed and there was a lack of hearing.

Employers have to intervene and take action in time if they receive signs about a superior who creates an unsafe work climate. The courts may punish employers who take a too passive attitude. For example, last summer the Court of Appeal of Arnhem-Leeuwarden held that an employer who took little and vague action after receiving signs about transgressive behaviour had acted seriously culpable. The employer failed to record the complaints about the employee in question properly. Besides, the employee had not been told sufficiently clearly what exactly he had to change about his communication style, and after his conduct had been investigated internally, the employer had failed to act in time.

The employee in question was a superior at a furniture manufacturer. According to the employer, several complaints of subordinates about the employee's behaviour had been trickling in since 2019. It was not until the 2021 year-end performance review meeting that the employee was told that they expected a different communication style from him. The employer told him that he would have to improve his ‘manner of communicating’. At the end of 2022, the employee sent HR a range of e-mails about a new position matrix, in which he used the words “veiled slave labour” and that HR “ought to be ashamed of themselves”. In response, the employer only confronted the employee about these mails orally.

In mid-2023, a colleague resigned because of unease with this employee. This colleague stated that it was impossible to communicate orally with him. This prompted the employer to have talks at the employee's department, which talks allegedly revealed that the employee had created a culture of fear. These talks were not recorded in writing. The employee did not recognize himself in the criticism expressed, and a round of questions about this was never completed. When two months later a colleague of the employee reported to HR in tears, because the employee had called her “a sneaky bitch”, the employer had had enough. The employee was suspended and the employer requested the Subdistrict Court to rescind his employment agreement. 

In the first instance proceedings, the Subdistrict Court did not point the finger at one party in particular, but held that both parties could have done better. The Subdistrict Court rescinded the employment agreement on account of a permanently damaged employment relationship. The employee lodged an appeal, because he believed that the employer had acted seriously culpable and consequently owed him €200,000 in fair compensation. 

The Court of Appeal was remarkably stricter with the employer. The employer should have kept a much better record of the complaints, talks and investigations. Besides, the employer had not made it clear to the employee what change of conduct he was expected to show, not even after the resignation by a colleague in 2023 and the subsequent talks. The employer should have given the employee concrete points of improvement, and should have made it clear to him what the consequences would be if he would display the transgressive behaviour again. Moreover, this behaviour had not been checked in the meantime. After each investigation into the employee's conduct, the employer also hesitated for a long time before discussing it with him. Finally, the complaints procedure in place at the employer was not complied with properly, and both parties had not been heard properly.

The Court of Appeal concluded that the employer had acted seriously culpable, and awarded the employee €34,000 in fair compensation.

The employer could be seriously blamed for the occurrence and aggravation of the damage to the employment relationship. Perhaps things could have taken a different turn if the employer had made a more determined effort, had recorded all complaints and talks clearly, and had made concrete agreements with the employee about changing his behaviour. 

This case demonstrates the importance of performing an investigation that is both careful and expeditious. It is important that employers follow their own complaints procedure and policies. The fact that this employer had not done so was also weighed by the Court of Appeal in its assessment of whether seriously culpable acts had been committed.