A hugging and joking director proves an expensive joke for the employer

Employment Law

20 September 2022

A hugging and joking director proves an expensive joke for the employer

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

Safety for employees in the workplace is playing an increasingly large role in our society. Employees are increasingly daring to take action. In a recent ruling (ECLI:NL:RBROT:2022:7007), the Rotterdam subdistrict court also rules on this.

Facts of the case

In the case referred to above, several documents in the file showed there had been physical and verbal boundary-crossing conduct at the company.

Hugging culture.
The director-owner hugging employees occurred very regularly. He often demanded a hug upon arrival. The director also regularly made sexually tinged remarks under the guise of a joke. He had also touched an employee’s buttocks or genitals on multiple occasions.

WhatsApp messages.
It also emerged that he did not communicate in a businesslike tone (by phone). On WhatsApp, for example, the director sent employees messages containing pet names such as “sweetheart”. Another message sent read “big kiss”.

Arbitrary bonus policy.
Another important detail is that the employer had no remuneration policy, and the level of bonuses and salaries was determined arbitrarily by the director-owner. This created a strong dependency between the director-owner and the employees.

Sick leave, dissolution and fair compensation

This became too much for one of the employees, who therefore reported sick on 25 June 2020 and later requested dissolution himself. It is very rare for an employee to request dissolution themselves, since that carries a significant risk of losing unemployment benefit. The employee sought fair compensation of no less than €175,000 for the employer’s failure to fulfil its obligation to ensure a safe working environment, in addition to the transition payment.

The employee had also, in the meantime, filed a police report on 18 September 2020 alleging assault by the director.

Employer’s defence

The employer took the position that there was no systematic and prolonged boundary-crossing conduct by the director. According to the employer, colleagues within the company simply interacted with each other in a relaxed and familiar manner. To the extent there was a “hugging culture”, it was in no way sexual in nature.

The employer further argued that the employee had never reported the undesirable conduct to the employer, so the employer could not have been aware of it.

The subdistrict court’s ruling

The subdistrict court did not accept this last defence. Normally an employee can report undesirable conduct to a supervisor, but here it was the supervisor — the director-owner himself — who displayed the undesirable conduct. Precisely for that reason, appointing an independent (internal or external) confidential counsellor is so important. In the subdistrict court’s judgment, the employee had sufficiently demonstrated that he could not turn to the designated confidential counsellor and/or prevention officer.

As for the hugging, the subdistrict court ruled that, as a director, you cannot expect your employees to want to hug you on a regular basis. There is boundary-crossing conduct because the employees experienced it as such.

The subdistrict court further did not view the director’s remarks as jokes, and found the fact that the director joined in with this “locker room” humour to be particularly reprehensible. A director should keep their distance and is not “one of the guys”. He must ensure a safe working environment for all employees.

As for the bonus arrangement, the subdistrict court ruled that the director should have adopted a more professional, objective and independent approach towards the employee.

High fair compensation

In this case, the subdistrict court’s ruling ultimately resulted in a finding that there had been seriously culpable conduct by the director. As a result, the subdistrict court awarded €50,000 of the fair compensation claimed.

Conclusion

This case once again confirms that boundary-crossing conduct in the workplace can result in an expensive bill for the employer. Employers have a duty of care to ensure a safe working environment for their employees. Where this does not happen, there may be seriously culpable acts or omissions on the part of the employer, as a result of which the employee themselves requests dissolution of the employment contract and can claim high fair compensation. This is in addition to internal damage and reputational damage.

Internal reporting and complaints procedure and internal confidential counsellor

It is also important that employees are able to make a report internally or externally to a confidential counsellor. Reporting boundary-crossing or undesirable conduct to a supervisor is not always possible, because this cannot be done confidentially. And as stated above: the person displaying the undesirable conduct can sometimes be the supervisor themselves.

An employer must therefore act adequately and demonstrably against undesirable and (sexually) boundary-crossing behaviour. Appointing a confidential counsellor and having an internal reporting and complaints procedure is a must here.

Would you like to make a serious effort towards a safe workplace, free of boundary-crossing conduct, for your staff? Then send one of your employees to our training to become an internal confidential counsellor. The Legal Company is holding a Masterclass ‘Become an internal confidential counsellor in 1 day’ on Thursday 20 October 2022.

In the masterclass, Hella Vercammen (certified by the National Association of Confidential Counsellors) will teach you to distinguish between undesirable conduct, integrity violations and labour disputes. You will learn how this undesirable conduct can be prevented and its consequences limited as much as possible.

This masterclass includes a presentation, a certificate of participation, and a delightful walk along the beautiful Poel in Amstelveen while enjoying luxury sandwiches

To register for the masterclass: click here.

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