It happens often in the workplace: a love relationship between colleagues. This may be undesirable for an employer for numerous reasons. Especially if it concerns a relationship of an employee with a subordinate or someone in a dependent position. What things should an employer pay attention to if he wants to take action against this?
In a recent ruling of the Court of Rotterdam, the Subdistrict Court assessed the question whether an employee had committed a (serious) culpable act by starting a relationship with a trainee. Below, we will describe the main guidelines that can be gathered from this case.
Subdistrict Court: no transgressive behaviour
The Subdistrict Court of The Hague held that there was no transgressive behaviour because the colleagues had a sexual relationship. The employer’s opinion that there was transgressive behaviour did not suffice.
Culpable behaviour (E ground)
The question that remained was whether having the relationship with the trainee constituted such culpable behaviour that it could not be required of the employer to continue the employment agreement. The Subdistrict Court ruled that this was not the case, and attached much weight to the absence of a clear policy that prohibited having relationships with colleagues. When the employee had confided, at an earlier time, that he had had a date once with a (different) trainee, he had not been called to account for that.
Besides, the Subdistrict Court considered it relevant that the employee reported of his own accord that he was dating a trainee. Allegedly, the relationship only started after the employee and the trainee had stopped working at the same location.
Damaged working relationship (G ground)
Although the Subdistrict Court believed there had been neither transgressive behaviour nor (serious) culpable behaviour, it rescinded the employment agreement because of a damaged working relationship.
Employer has committed a serious culpable act
The Subdistrict Court stated that the employer had (indeed) committed a seriously culpable act by, inter alia,
- (i) communicating the suspension of the employee to the organisation prematurely and without due care, and
- (ii) wrongly accusing the employee of transgressive behaviour. The employer was therefore ordered to pay the employee fair compensation in the amount of €30,000.
Conclusion
The case described above shows that an employer should act carefully and firmly if there is “alleged” transgressive behaviour. The label “transgressive behaviour” does not fit just any situation that has a sexual component to it.
If he suspects transgressive behaviour, an employer would do well to perform a thorough investigation, taking into account both the interests of the alleged perpetrator and those of the alleged victim. A balance should be struck between acting expeditiously and acting carefully. In addition, this case confirms that it is worthwhile for employers to have a policy in place against undesirable behaviour and (even in the absence thereof) to call employees to account for behaviour that is undesirable within the organisation.
Do you have a situation involving possible (sexual) transgressive behaviour, or do you wish to prepare a policy or have your policy reviewed? Please contact our experts: Tim Wilms and Sjoerd Backx.
