The revelations about The Voice of Holland and Ajax’s response regarding sexually inappropriate behaviour are only the beginning. The Rutgers foundation, which champions sexual health and rights for everyone in the Netherlands, said in the NOS news broadcast of 8 February 2022 that it is glad the topic is now higher on the agenda, but it also wants it to stay on the agenda. That is only possible if organisations start working on prevention. The cabinet also now wants to rapidly do more to combat inappropriate behaviour. They want Mariëtte Hamer, chair of the SER, to become the driving force and tackle the culture of gender stereotyping and abuse of power. A good moment for all employers in the Netherlands to ask themselves, “how have we actually arranged this?” What does it all involve and what can we do about it? In this blog we would like to inform you about the legal aspects of that prevention. We are happy to share our knowledge, because we too want to contribute to a safer and healthier working climate in the Netherlands.
When is behaviour sexually inappropriate?
In the media we are now regularly confronted with the terms unacceptable, inappropriate behaviour. A clear-cut definition is hard to find. The term sexual harassment is now more often found online and is described by the equal treatment act as follows: ‘any form of verbal, non-verbal or physical conduct with a sexual connotation that has the purpose or effect of violating a person’s dignity, in particular where an intimidating, hostile, degrading, humiliating or offensive situation is created’. Sexually inappropriate behaviour in the workplace is broader than just unwanted sexual attention from colleagues and supervisors. Sexually inappropriate behaviour is behaviour in which someone is approached, persuaded, influenced, manipulated, blackmailed or forced into sex without consent, without willingness, without equality, without age or developmental appropriateness, without contextual appropriateness or without self-respect. But it can also take the form of bullying, intimidation, physical violence, which can result from power imbalances within a company. Ultimately it comes down to a specific form of psychosocial strain that has harmful consequences for the employee’s physical, sexual and/or psychological health. The behaviour has the purpose and effect of violating a person’s dignity.
5 risks for employers from inappropriate behaviour
The above matters obviously have far-reaching psychological consequences for the victims, the employees. This creates direct damage and risks for employers.
- First, because (long-term) absence of the employee in question is a real risk, and the employer has an obligation to continue paying wages for up to 24 months.
- Second, the employee can hold the employer liable for the psychological and material damage suffered (loss of income) under Section 7:658 of the Dutch Civil Code. Under that article, the employer is, in short, responsible for a safe and healthy workplace. That claim can also still follow after the employment has ended.
- Third, the employee can also request dissolution from the subdistrict court on account of the harmful inappropriate behaviour, and claim a high fair (dismissal) compensation for seriously culpable conduct.
- Fourth, the Netherlands Labour Authority (Inspectie SZW) has the task of checking whether employers pursue a policy aimed at preventing and limiting psychosocial strain, including sexual harassment. If an employer fails to do so, it has, since July 2019, risked a fine of up to €4,500, depending on the size of the company.
- Finally, it should not be forgotten that if such a case of sexually inappropriate behaviour makes the news, this also damages the company’s brand value and reputation. And of course it also causes internal unrest and harm among colleagues and can lead to a loss of productivity.
Ajax is certainly suffering reputational damage from the Overmars case, and that could, for example, well have an effect on donations to the Ajax foundation. This can also cause internal unrest among the players, which may affect their playing performance. Cooperation among themselves or with their coach and director may also come under pressure. That is not good for motivation and team spirit, and we all know that this is crucial if a company or organisation wants to deliver good performance. In short, every reason to get ahead of this, to work on prevention, and to act as soon as it unfortunately does occur.
Employer’s duty to prevent inappropriate behaviour.
Employers first have a duty, arising from health and safety legislation and employment legislation, to, among other things, combat sexual harassment and inappropriate behaviour. Enforcement of this obligation takes place through the Netherlands Labour Authority, as we discussed above. This is linked to the open employment-law standard of being a good employer (Section 7:611 of the Dutch Civil Code) and the employment-law duty of care for a safe and healthy workplace (Section 7:658 of the Dutch Civil Code). However, the Working Conditions Act and employment legislation do not literally prescribe what such a policy should specifically look like. Therefore, an employer must give it substance itself, and for that we have a number of practical tips.
How does an employer preventively create a safe working environment?
For the reasons above, it is important for an employer to have a good preventive policy to combat inappropriate behaviour. This can spare employees a great deal of misery. Under the law and regulations, the employer has a duty of care regarding the safety and health of employees. The Working Conditions Decree sets out four obligations for the employer in this regard, which are shown in bold below. We have provided each point with additional advice so that you, as an employer, know what is expected of you. First, employers are obliged to set frameworks, and thus to draw up conduct rules, aimed at preventing or limiting psychosocial strain, including through sexually inappropriate behaviour. It is advisable for the employer to ensure clear written standards and values in the area of unwanted behaviour, in the form of an “unwanted behaviour protocol” or a code of conduct. Second, the employer must actually give substance to the conduct rules established against unwanted behaviour. As an employer, lead by good example. Do not let the conduct rules, protocol and policy become a paper tiger buried somewhere in a drawer. Make it part of a constant improvement and control cycle (plan-do-check-act). The employer must involve employees and management in drawing up such a code of conduct. The employer must also ensure that management clearly expresses its commitment in that protocol and in the workplace to enforce that code of conduct. Furthermore, the employer must also investigate the current situation and identify existing risks. It is advisable for the employer to do this by means of a Risk Inventory & Evaluation (RI&E) assessment. This risk analysis is part of a structured preventive policy. It also allows the employer to demonstrate afterwards that it has been working on this. An employer also gives practical substance to the policy against unwanted behaviour by informing all employees and management about the risks mentioned above and about the measures taken to prevent and/or limit psychosocial strain. Also by organising training for employees and supervisors in which examples are given of what may appear in Whatsapp messages and when a warning or dismissal follows. There are various organisations that organise such training, but certified confidential counsellors can also do so. Third, an employer must act adequately and demonstrably against unwanted behaviour when it occurs. There can be as many conduct rules as you like; that does not mean unwanted behaviour no longer occurs. That is why the employer must make it easier for the employee to choose to do something about it. That is only possible if the employer has appointed a confidential counsellor and regularly draws staff’s attention to this. In doing so, the employer shows that such problems are taken seriously. If the top boss says this, employees have more courage to speak out about, for example, their supervisor. We also saw that happen at Ajax when director Van der Sar drew staff’s attention to the existence of a confidential counsellor and the complaints procedure. Only then did the official reports about Overmars come loose. It is best to appoint an independent, external, certified confidential counsellor. For small employers, it can be a solution to arrange this via a trade association. Internally, a confidential counsellor can also be appointed, whereby an employee of your own is trained as a confidential counsellor. Very strict rules then apply for the confidentiality that a confidential counsellor must observe in carrying out their duties. Independence is always the tricky part. Furthermore, it is important to ensure a clear complaints procedure. The legislator does not provide criteria for this. This procedure often starts with the confidential counsellor. The complaints procedure, which can be included in the policy, states which steps must be taken from the moment the complaint is reported. A careful procedure should at least meet the following requirements:
- The handling of the complaint must be done by independent and expert investigators. In the case of sexual harassment, it is important that both sexes are represented on the investigation committee;
- Timely informing of all those involved;
- Hearing the victim and (alleged) perpetrator;
Finally, registering and analysing incidents in the workplace is important in order, for example, to draw lessons from them and, where necessary, adjust the policy.
What actions do you take when something goes wrong?
The priority is to offer confidential and professional support to the victim in order to limit unnecessary (injury) damage. Once the victim has been able to tell their story, it is important that the situation remains open for discussion for the victim. In addition, the (alleged) perpetrator must be able to respond to what they are accused of by the victim. In some cases, a solution can be reached through consultation. In other cases, mediation, professional support, formal complaint handling or even dismissal of the perpetrator (and possibly reporting to the police) are possible ways to address the situation. This depends on the relationship between perpetrator and victim and the severity of the complaint. Finally, there must be room for the victim to process the unwanted behaviour. Professional help should be offered here, for example a visit to the company doctor.
Dismissal of the perpetrator
In the event of dismissal of the perpetrator, it is important to know that this employee can be dismissed either on the ground of ‘culpable conduct‘ or through summary dismissal. However, the court has the final say in this if the parties cannot reach an amicable settlement between themselves. In eight out of ten cases, such matters are resolved internally through a settlement agreement or transfer, because of the reputational damage a company suffers the moment such a case is picked up by the news. If it does go to court, it is important to bear the following in mind. First of all, it is important to know that the victim bears the burden of proof. This can sometimes be difficult if there is no video material, emails or Whatsapp conversations or the like. Furthermore, evidence is not always sufficient. The court also looks at the context of the situation and always makes a balancing of interests. If inappropriate sexual behaviour can be proven, that does not always necessarily mean dismissal. If an employee who has already been employed for 15 years and is older than 55 sends an inappropriate Whatsapp message, the court will factor the age and duration of the employment into the balancing of interests. The court will therefore not always hold this fatally against them. This is partly related to whether there is a position of power or a situation of equality. The circumstances of the case certainly play a role. Before employers want to dismiss a perpetrator, it is important to first have that file reviewed by a lawyer. Would you like to personally contribute to a safe and trusted environment within your organisation?
