The developments following the revelations about Harvey Weinstein’s misconduct seem unstoppable. More and more people are coming forward about their personal experiences with sexual harassment. A great development from a societal perspective.
For employers, this could also mean that there will be more internal complaints of sexual harassment. It is high time for a sanity check; is sexual harassment already prohibited in the internal code of conduct? Is sexual harassment well defined? And what next; is there a confidential counselor, and a code of conduct for the confidential counselor? Do employees know how to find the confidential counselor? In short, is the applicable legislation (Occupational Health and Safety standards and Article 7:658 of the Dutch Civil Code) being complied with?
Then the real challenge begins; handling the complaint. A careful, prompt, and unbiased approach, in which the complaint is also critically examined, is recommended. The victim should receive sufficient support and protection. It is difficult to overcome the threshold of shame and he/she fears for their job. However, the allegation of sexual harassment can also be unfounded and made for other reasons. The hearing of witnesses should therefore be conducted in a professional manner. Relying on second- or third-hand statements is often insufficient, as was recently determined by the subdistrict court in Rotterdam. In any case, the privacy of both parties involved must be protected to prevent reputational damage—and even an unbearable situation in the workplace. A very difficult balancing act.
The costs of additional absence days of victims related to sexual harassment are estimated at 1.7 billion per year (according to FD October 26, 2017, p. 7). Prevention is better than cure, and the current developments will likely make potential victims more assertive and potential “perpetrators” aware of the consequences of their actions, namely the damage to the (physical) integrity of another.
Employers are required by Occupational Health and Safety legislation to implement a policy aimed at preventing or limiting sexual harassment. It must be clear that sexual harassment in the workplace is not tolerated under any circumstances. Employers are also obligated to provide information about the dangers of (sexual) harassment and the measures taken to counteract it. Good information provision should make it clear what behavior is unacceptable, enabling employees to quickly and confidently set their boundaries and, if necessary, discuss intimidating behavior with the appropriate (confidential) person. The sooner a boundary is set, the better.
Our office has extensive experience in advising and assisting with complaints of sexual harassment and sexual abuse, among others as Legal Advisor at the Reporting Center for Sexual Abuse RKK. For further questions, you are welcome to contact us via tel 071 – 737 03 39 or info@lvdadvocaten.nl
See for more information: https://www.arboportaal.nl/onderwerpen/seksuele-intimidatie
District Court Rotterdam, October 20, 2017: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBROT:2017:7907
Court Midden-Netherlands November 14, 2018: the experienced and older employee who kisses his young female colleague, whom he has to train, on the mouth without consent and approached her with chat messages including ‘I miss you’, is guilty of sexual harassment, which is prohibited according to the Team Member Handbook, and moreover contrary to good employment practices (7:611 BW), is rightly dismissed summarily: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBMNE:2018:5652
District Court Noord-Holland, January 20, 2020; based on investigation, the court has become convinced that there was sexual misconduct, summary dismissal due to dereliction of duty is an appropriate measure: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBNHO:2020:308
