We were first introduced to the #MeToo hashtag five years ago. Since then, (sexually) transgressive behaviour in the workplace has increasingly been in the limelight. In case law, since #MeToo, sexually transgressive behaviour increasingly leads to the termination of employment contracts. Courts are also increasingly ruling in such cases that the employee is guilty of culpable (or even seriously culpable) behaviour.

A great deal can be said about sexual transgressive behaviour in the workplace and how it should be dealt with it. It is very important, for instance, to conduct a thorough investigation before drawing any employment-law conclusions, and it must be clear to the employees that certain behaviour is not permissible.

In this article, we focus on the defence often raised by employees that an informal or “easy-going” corporate culture exists within the company. Accused employees then argue that the company’s employees interact with each other in an amicable and easy-going manner, or that sexual comments and jokes are common on the work floor. Their defence is then that transgressive behaviour is in keeping with or the result of that corporate culture.

We find that the courts are increasingly rejecting such defences. If an employee oversteps a clearly defined mark – even if the company’s culture is informal – that is almost always grounds for the court to terminate the employment contract these days.

This obviously does not mean that employers no longer play any role in this regard: the Arbowet (Working Conditions Act) requires that employers ensure a safe workplace and prevent “psychosocial work stress” on the part of their employees. This includes preventing or limiting sexual harassment.

Following the BOOS television broadcast last January about the abuses on the TV programme The Voice of Holland, the public debate loudly called for a change in culture. Clearly, it was essential that employees feel free, for instance, to report abuses or transgressive behaviour. It became apparent that merely setting up a hotline often does not suffice. It is in any event important that signals of transgressive behaviour are taken seriously and that sufficient attention is paid to that issue at management level. Managers should discuss with the staff on the shop floor what behaviour is and is not acceptable. It is of course also essential to take action when employees cross the line. Depending on the severity of the offence and the company policy, employment-law sanctions may range from a warning to summary dismissal.

Please contact Lise van den Heuvel (+31-6-234 922 48) for more information or advice on this subject.

This article was published in the Newsletter Vestius of November 2022