What was seen as not particularly serious in 2019 – sexually charged remarks, a hand on someone’s bottom or other physical contact, showing nude selfies, or sexual misconduct at the office Christmas drinks – is now clearly condemned, and often grounds for ending the employment contract.
Yvonne Sorensen recently wrote a column for Friends in Business on sexual harassment.
The conduct itself has not changed. People’s view of it has. Years ago, much was tolerated; now, far less is. It is a good thing that inappropriate conduct is now addressed properly.
At the same time, we should avoid overcorrecting in workplace “enforcement”. In practice, the balance is currently sometimes skewed, with the complaining employee favoured over the employer and/or colleagues.
In cases of (demonstrable and repeated) sexual harassment, our advice – depending on the circumstances – is not to give summary dismissal, but to file a request for dissolution based on serious culpability, and to suspend the employee in the meantime.
The District Court Rotterdam recently dissolved an employment contract without a transition payment, because the employee held a senior role (director) and several seriously incriminating statements about him had been made across different levels of the organisation over several years – in other words, structural misconduct.
Employers should not use the drastic measure of summary dismissal lightly. In practice, having a clear policy and actually enforcing it stands out as a decisive factor. The saying “forewarned is forearmed” certainly applies in these cases. Alongside drafting a policy, its enforcement must also be monitored.
Something similar is happening around gender diversity. There used to be two options: he or she. Now there are more, such as the gender-neutral “they”. Employers should realise this can matter a great deal to employees.
Usually, it is enough to add a section on gender diversity to your existing anti-bullying protocol or sexual-harassment protocol.
I think it is a good thing that the attention these topics receive is raising awareness. At the same time, there needs to remain room for a relaxed atmosphere and casual ways of interacting. Neither employers nor employees benefit from a workplace governed by fear of complaints.
These days, we receive many questions on this topic. Employers are then confronted with significant workplace tension due to (repeated) complaints from non-binary staff about how colleagues address them. Investigating what happened, talking to those involved, issuing written warnings, and pointing to the protocol and expected standards of conduct, usually bring the necessary clarity.
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
