#MeToo in de rechtszaal nog geen ‘business as usual’

In 2017 the word ‘MeToo-story’ was a serious contender for the word of year. For those who have momentarily forgotten what it was all about: in October 2017 the #MeToo went viral as a hotline for stories about sexual intimidation or assault, with the work floor being the most prominent scene of the crime.

From the Dutch case law on employment law matters that has been published since then, one could tentatively conclude that not all ‘Me Too stories’ found their way to the courtroom. Compared to the profusion of reports online, the number of published cases involving (alleged) sexual intimidation on the work floor does not show the same exponential increase.

Quantity, however, says nothing about quality; please find below a few rulings from the MeToo era.

The 62-year old teacher
A 62-year old teacher worked at an educational institute for 25 years. In May 2017 the institute received complaints from parents and students about the fact that he had made sexist comments. A code of conduct was in place that explicitly prohibited such conduct. The school confronted the teacher with the complaints and eventually, on 3 October 2017 (‘Pre-MeToo’) the parties ended up before the court in Alkmaar with the school asking for the dissolution of the employment contract. At the hearing it was established that the teacher had made comments to female students, such as ‘I have to grab you between the legs’, ‘don’t stretch or I’ll get hot’ and ‘I’m not looking at your tits’. The sub-district court found that there was culpable conduct, but not such that the employment contract could not reasonably be continued. The court found that a less drastic measure, such as a warning, would have been more appropriate. The contract was not dissolved on account of culpable conduct, but on account of a damaged working relationship. The court went further. It also found that the employer had acted culpably by failing to exercise due care in its investigation. The educational institute had to pay the transition payment and fair compensation to the teacher.

The employee that dropped his trousers
At the height of the #MeToo movement in November 2017, a sub-district court in Utrecht decided that the fact that an employee dropped his trousers in front of a female temporary worker was insufficient cause for a summary dismissal on account of sexual intimidation. The woman in question had been hired to put a logo on the company’s work wear. When it was the employee’s turn to have his clothing printed, he took off his trousers and sat down next to the woman in his boxers. He asked her to print the logo on his trousers too and proceeded to make various sexually charged comments. The sub-district court found that the male employee had not been aware that the trousers did not have to have a logo put on them. The employer had moreover failed to state facts from which it should be clear that taking off the trousers had a sexual meaning. Although it was established that he had made flirty comments, he had not done so when taking off his trousers but only afterwards when he sat next to the temporary worker in his boxers. It was established that the temporary worker felt ill at ease with the situation, but that was not the reason the employer had put forward for the dismissal. In other words, the employer had not consistently put forward the facts that should have served as the ground for the dismissal. The court moreover held it against the employer that it had gone for termination of the employment contract while a less drastic measure would have been more appropriate. The dismissal was annulled and the employer had to continue to pay the wages until the end of the employment contract.

The employee working for a Dutch parliamentary party
In a Dutch parliamentary party they likewise had an employee who had set his sights on a female intern. Following the Christmas dinner of one of the parties the two colleagues walked around the streets of The Hague late at night and he tried to kiss her a few times. When it became clear that she was not planning to respond, he packed up and went, leaving her alone in the city in the middle of the night. When the party learned of the incident, the matter was initially dealt with by means of a written warning. However, on further consideration, the party decided that it wanted to get rid of the employee after all. The court hearing the case however took the view that the employee had been punished for his behavior by being given the written warning and that the contract could not be terminated based on the culpable conduct of the employee. The working relationship had, however, been damaged by that point and the employment contract was dissolved. The employee was still entitled to his transition payment.

General conclusion?
No general conclusion can be drawn from these cases as regards the effect that #MeToo has had on case law on employment law matters. There does however seem to be a recurring factor that impacts the degree to which the court attributes established facts to the employee and the employment law implications this has. This is the fact that even where certain culpable conduct is demonstrated or in fact acknowledged by the employee, the employer must still exercise due care in imposing sanctions.

Accordingly, if you as an employer are faced with a case that would be an open-and-shut case on #MeToo, the Dutch employment court needs more than 140 characters to deliver a judgment. It is therefore important to get advice before you take measures.