Introduction
Despite the rise of the #MeToo-movement in 2017, examples of sexual harassment are – unfortunately – still numerous. Research by the Dutch Central Agency for Statistics (CBS) shows that in 2021, 1 out of 5 young female employees have experienced transgressive behaviour in the workplace*1.
Pursuant to the Dutch Working Conditions Act (Arbeidsomstandighedenwet), employers are primarily responsible for protecting their employees against undesirable conduct, and creating a safe work environment*2. In this article, we will discuss appropriate measures that employers in the Netherlands should take to prevent (sexual) harassment in the workplace.
What is sexual harassment?
Sexual harassment is “any form of verbal, non-verbal or physical conduct with a sexual connotation which has, as its object or consequence, the dignity of a person being impugned, in particular when a threatening, hostile, insulting, humiliating or offensive situation is created”*3. In practice, this could consist of offensive touching, sexual comments, sharing sexual pictures or videos, or unwelcome advances. In order to qualify as sexual harassment, the offender does not necessarily have to be aware of their behaviour. The perception of the victim prevails over the intent of the offender.
Measures to be taken by employers in the Netherlands
Employers are responsible for creating a safe workplace, identifying risks at the work place and taking appropriate measures to ensure employees are safe. Therefore it is recommended that they adopt a clear and understandable policy on (in)appropriate conduct*4. This policy should contain guidelines on appropriate behaviour, preventative measures, a complaints procedure and a set of disciplinary measures for violations of the policy. Employees could also be referred to an internal or external confidential advisor/counsellor or both*5.
Special attention should be given to employees in a management position. Because of the hierarchical relation to their subordinates, management should be aware of their position of power. It is up to the employees in a management position to guard against boundaries being crossed and to lead by example.
It is essential that employees are periodically informed about the Code of Conduct and how they can report transgressive behaviour. If cases of harassment remain unreported, this knowledge is present within the company and employers are not cleared of their responsibility, with all risks involved. For instance, the subdistrict court of Rotterdam recently awarded EUR 50,000 gross in compensation to an employee who was systematically (sexually) harassed by a director*6. The Court rejected the employer’s defence that the employee never reported the unwanted behaviour, because the employer had not set up proper reporting channels and the harassment came from a high-ranking person in a position of power, who had to lead by example.
In order to ensure that employees report unwanted behaviour, employers should establish an open corporate culture in which all employees can discuss uncomfortable feelings, dilemmas and fears in an accessible way. Moreover, transgressive behaviour will likely be repeated/continued if employees are not willing to call each other to account. Therefore, it is very important to develop a culture in which employees are given the proper tools and confidence to speak up.
How we can help
Our Amsterdam Employment Team is organising an online webinar on (the prevention of) harassment in the workplace on 22 November at 16:00 hours CET. During this webinar we will give practical tools on how to recognise and deal with (sexual) harassment in the workplace, based on the latest developments in Dutch (case) law. You will also have the opportunity to ask any questions you may have about this topic. You can register for this webinar by sending an e-mail to daan.koenrades@hoganlovells.com.
If you would like to know more about our services or have questions, please do not hesitate to contact the Amsterdam Employment Team.
Authored by Anita de Jong, Maria Benbrahim, Imane Azdad and Daan Koenrades
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Pursuant to Article 7:658 of the Dutch Civil Code employers also have a responsibility to prevent damage to employees at the workplace.
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Article 7:646(8) of the Dutch Civil Code.
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The adoption of such a policy may be subject to the right of consent by a Dutch works council.
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Please refer to our recent know how update in which the (upcoming) obligation for employers to have a confidential advisor/counsellor is discussed in more detail.
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