American actress Alyssa Milano’s posted on Twitter on October 15, 2017: if all women who have had to deal with sexually transgressive behavior would change their Twitter status to “Me Too,” we would get an idea of the magnitude of the problem. As a result, the hashtag #MeToo went viral, also in the Netherlands. Meanwhile, we are barely five years down the road and it appears that the scale in the Netherlands is large, too. Many cases involving sexually transgressive behavior – including in The Voice Of Holland – were given a lot of media attention.
SERIOUSLY CULPABLE CONDUCT?
However, it remains unclear what kind of employment law consequences can be attached to sexually transgressive behavior. Some time ago, for example, the Supreme Court of the Netherlands was asked whether sexually transgressive behavior in a dependency relationship should in principle be regarded as seriously culpable conduct of the employee, so that no claim can be made for a transition allowance in the event of dismissal. Barely a year ago, the Supreme Court ruled in the negative and no rule of thumb followed (Supreme Court June 24, 2022, ECLI:NL:HR:2022:950). In short, whether sexual transgressive behavior in a dependency relationship qualifies as seriously culpable conduct will have to be assessed on a case-by-case basis.
GUIDE TO REPORTING SEXUAL TRANSGRESSIVE BEHAVIOR
Recently, some more guidelines have been given on how to deal with reports of sexual transgressive behavior. On May 17, 2023, the Guide to Reporting Sexually Transgressive Conduct in the Workplace was published (“Guide”). With the Handbook, Government Commissioner Mariëtte Hamer introduced a “prototype” for a step-by-step plan that every organization should have in place for when a report comes in.
The Guide is based on four phases:
• Phase 0: be prepared for a notification
• Phase 1: decide what to do with the report
• Phase 2: carry out the chosen follow-up carefully
• Phase 3: learn from the reporting process
PHASE 0: PREPARATION
Phase 0 focuses on preparation. In total, the Guide has 13 tips for phase 0. The most important tips are:
• Pay attention to creating and maintaining a safe work culture
• Appoint a trusted advisor
• Draw up a risk inventory & evaluation and action plan, and ensure periodic adjustment and evaluation
• Develop a reporting protocol
• Draw up a code of conduct together with employees
• Investigate the possibilities for an internal or external complaints procedure
Are you curious how to implement the above tips in your organization and/or do you want to know more about phases 1 to 3 of the Guide? Then come to our English-language seminar on Thursday, June 8, 2023. During this seminar we will discuss the legal obligations of employers regarding the creation of a safe workplace, reintegration, the role of the company doctor, options in case of conflicts and we will give tips on how to deal with mental health from an employment law perspective in the workplace. You can register via this link. We look forward to seeing you on June 8, 2023!