Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Early in 2019, we wrote in response to the #MeToo movement that an employer had to ensure a safe working environment. With a sound and effectively enforced policy, the employer is the cornerstone for preventing sexual intimidation in the workplace.
The situation at “The Voice of Holland”1—a Dutch reality competition—shows us that not all businesses can yet boast of having sound policies. For this reason, we once again set out the steps that employers can take to counteract sexual intimidation in the workplace.
The employer's obligations
Preventing sexual intimidation is not just a moral obligation but also a legal one, as it must form part of the employer's occupational safety policy under the Working Conditions Act. An employer must identify all business risks and take appropriate measures so that each employee (i) can work safely, (ii) feels safe at work, and (iii) can report any conduct that goes too far.
If this is not sorted out, the employer can be held liable for the damage suffered by an employee as a result. A culture of intimidation, including sexual intimidation, can also create a hostile working environment, fear among the workforce, high absence rates, high staff turnover and reduced productivity.
Employers must therefore prepare a clear and available policy and then go on to enforce it, so that employees know what conduct will or will not be tolerated. 'Clear' means that the policy should be phrased in understandable language. 'Available' means that the employees must be given the chance to find out what the policy is, for instance by sending it to them or referring them to its location on the company intranet. Informing the workforce about this policy properly is therefore essential. This has to be reinforced regularly rather than just being done once.
The works council will have a right of approval when the policy is adopted, changed or revoked but is also entitled to place working conditions on the agenda of its own volition. Sound policy will become embedded in the company culture and prevent any incidents, but the 'tone at the top' will determine that company culture.
Policy stands or falls by the level of its enforcement. That includes the punishment of undesired conduct but also the facilitation of a dynamic dialogue on safety and whether the workers feel they are free to report any abuses. Enforcement also includes the creation of a climate where people are not afraid to call each other out on their behavior. An employer would be well advised to carry out regular satisfaction surveys among the workforce and to take the results seriously. After all, if employees decide not to use the reporting points for whatever reason, as seems to have been the case with The Voice, the policy will have failed.
It should be quite clear where complaints are to be reported and, if there is an accusation of abuse, there should then be a thorough and dynamic investigation. This investigation should be performed by an independent (outside) expert who can pay due attention to the interests of all involved.
Respecting the privacy of those involved seems to be a challenge in practice, but this is essential since, if an investigation shows that there has not been any sexual intimidation, those involved will have to be able to continue working together without too many problems. Engaging an outside investigation bureau relieves the employer of any accusation of partiality.
Appointing an internal confidante also helps to counteract any unrest within the organization. It goes without saying that if a procedure is prescribed, the employer itself must also follow it scrupulously. If it fails to do so, the penalties before the courts may be harsh.
Dismissal follows on from undesired conduct
When it comes to sanctions for sexual intimidation, we see in practice that dismissal is often the result, usually when an employment contract is struck down by the court. Employment contracts are dissolved in these circumstances as a result of (seriously) culpable conduct. Dismissal is certainly appropriate where employees are or could have been aware of the policy on sexual intimidation within the business.
Good information is therefore essential in order to be able to punish employees who go too far. This information can be general or specific: a warning about conduct issued to an employee in the past can mean that a new but relatively minor infraction is punished severely. In employment law too, once you’ve been warned, you must watch your step.
Finally, the relative positions of the sexually intimidating employee – the 'perpetrator' – and the victimized colleague have to be considered. If the perpetrator is in a supervisory position and abuses that position, things will be all the harder for them. Summary dismissal is not out of the question. While courts used to be a little more lenient when dealing with this type of case, we can see that case law reflects a hardening attitude to such behaviour. The scandal at The Voice of Holland appears to justify this.
1 See Sana Noor Haq and Mick Krever, Dutch version of 'The Voice' pulled off air amid sexual misconduct allegations, CNN (Jan. 18, 2022).