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.
Since the rise of #metoo, transgressive behaviour1 in the workplace has been a hot topic involving a wide spectrum of industries - from sports clubs to politics and from television to education.
Although public outcry is often great, courts in the Netherlands do not readily assume the existence of serious culpability, especially if the employer does not have a specific policy prohibiting such behaviour. Adhering to the basic principle, “A transition payment must be paid, unless...,” the employee may still receive a transition payment, which is the statutory severance in the Netherlands. This was what an Amsterdam university experienced in a recent case before the Amsterdam sub-district court.
Complaints against a university lecturer and the investigation
Following a broadcast about transgressive behaviour, the university received six complaints about a lecturer who also coached students and was responsible for their grading. The university suspended the lecturer and commissioned an external investigation.
The investigation found the lecturer had a sexual relationship with a student, but it was unclear about the voluntariness of the relationship. Further, he asked other students to send him photographs in gala dress or to go swimming with him, sending along a photograph of himself in swimming trunks. In 2021, he also received a written warning for consuming alcohol in class. In his defense, the lecturer described himself as an “intense person” – a creative type with eccentricities who sometimes walked barefoot, informally communicated with students, and hugged students and colleagues alike.
Although the university applied internal rules and a code of conduct, the investigation found that it did not provide a clear, concrete assessment framework for the type of behaviour the university considered transgressive. The university had also appointed persons of trust and established a complaints committee.
As a result of the investigation, the university wanted the lecturer to leave and sought rescission of the employment contract on multiple grounds. The lecturer wanted to stay and, if dismissal did follow, requested the award of fair compensation and compensation for loss of his pension in addition to the transition payment. The fair compensation is an additional severance payment that is only due in case of seriously culpable acts or omissions of the employer towards the employee.
The court found the lecturer's behaviour was transgressive, but did the university fulfill its obligations?
The court held that the lecturer's teaching and coaching style differed from what was customary in the university programme. Generally, interaction between lecturers and students was informal and took place on more or less equal terms, with lecturers participating in social activities outside of classes. However, the lecturer’s behaviour went beyond that and was transgressive. He was to blame for the sexual relationship with a student and his failure to report it. The gala dress and swimming invitation incidents were equally inappropriate. The lecturer had not adequately considered his position of power as a lecturer and assessor.
At the same time, the court ruled that apart from the alcohol incident, the university had never called the lecturer to account for undesirable behaviour, despite his deviant coaching style and despite the appointment of persons of trust and the establishment of a complaints committee. In his own words, the lecturer changed from “hero to zero” in a short time, which had a great impact on him. In line with the investigation report, the court found that a more concrete assessment framework was needed that should define what conduct the university considered to be transgressive.
The court also followed the rule of “a transition payment must be paid, unless...”
The court rescinded the employment contract on the ground of a disrupted employment relationship. Integrity, reliability and credibility are core competencies of lecturers. The relationship of authority and dependence between a lecturer and a student implies that lecturers have to lead by example. The university was not required to employ or reassign a lecturer if it feared that doing so would affect the pedagogical climate and/or student confidence in the school.
Although dismissal followed, the court ruled that neither party was seriously culpable, and the university was to blame for the lack of a sufficiently concrete assessment framework. Consequently, the lecturer received a transition payment, but not the additional compensation he sought.
A possible checklist for employers to guard against transgressive behaviour
Although not foolproof, here are some steps an employer may consider taking to reduce the risk of transgressive behaviour in the workplace:
- Take measures to guarantee a sound and safe working environment.
- Call employees to account for their behaviour.
- Include clear rules of conduct and a proper complaints procedure.
- Ensure that a proper investigation is conducted by internal or external parties.
- Hear both sides during an investigation.
- And, once facts in the investigation are established: consider whether dismissal is justified/opportune and how the employee should be dismissed (i.e., by means of an agreement determining the legal relationship between parties, termination of the employment contract or summary dismissal).
1 An American audience would refer to this as “sexual harassment.”