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By Jan Dop, LL.M
Russell Advocaten B.V.
Amsterdam, Netherlands

What can you do to prevent sexual harassment on the workfloor? And what do you, as an employer, have to do if it does occur unexpectedly?

Sexual harassment by managers continues to concern us, as can be seen from the Dutch TV broadcast “M” last Monday. The TV program dealt with men that are concerned about the consequences of their past conduct for their reputation. Actions glossed over ten or fifteen years ago are now no longer accepted. When allegations – whether right or wrong – are published, the genie is out of the bottle and cannot be put back in. How can companies deal with it?

1. Establish a clear policy

It is vital for companies to establish clear rules and to set out these rules in the staff manual. This way, employees know what is expected from them and are familiar with the procedure that is followed and the sanctions for violations of the rules. It is also advisable to appoint a counsellor the harassed employee can confide in.

2. Establish the facts

Before taking definite measures, the facts will have to be investigated. There are several significant problems in this respect, for instance if there are no witnesses to the incident. People get in contact with each other and one person might feel harassed whereas it had never been the other’s intention.

To ensure that the incident can be assessed objectively external experts can be engaged who can immediately start investigations to reconstruct what happened, for instance by taking statements and checking the circumstances. The company has to take into account that the whole truth will never be uncovered but that it will have to take a decision regarding the employment relation.

3. Do not just deal with it internally

It is tempting to keep the matter behind closed doors in order to uphold the good name of your company. However, concealing your knowledge of criminal acts can be a criminal offence too. Therefore, it is advisable to seek legal advice concerning the matter. Also, if the facts will later become known to the public it won’t be good for your reputation if it turns out that you have concealed the matter. Therefore, you are well-advised to specify in your staff manual that the company can file a report with the police in the event of transgressive behaviour at work. This will also help the victim.

4. Follow your own rules

It is important to not just stipulate these guidelines but also to abide by them. Prorail, the company responsible for the maintenance of the Dutch railway network, presumed that in the #MeToo age the establishment of the fact that an employee under the influence of alcohol had become intimate with and insulted a female colleague was sufficient for dismissal with immediate effect. However, the court ruled the employee had indeed performed culpable action but they were not sufficient to sustain the dismissal with immediate effect. Why?

  • Prorail had made procedural errors. For example, the employee was not reminded of the option to submit a written statement.

  • The employee stopped the intimacies after the victim had indicated not to appreciate them.

  • The victim had indicated the wish to clear up the matter with the offender and the offender had said he had regrets and would like to offer his apologies.

  • The consequences for the 58-year-old employee with over 40 years of service and impeccable record of service had not been considered.

  • Prorail referred to the matter as “an incident”, which indicated that it had not been a structural problem.

  • Prorail had not considered the option to impose less severe measures, such as suspension.

Despite the #MeToo movement, which Prorail explicitly referred to, the court will consider all circumstances of the matter, thus also the internal procedure and the consequences for the employee. Therefore, Prorail has to reinstate the employee and pay wage arrears, including a statutory increase that was brought back to 25%. Taking hasty measures in fear of public opinion therefore can result in significant costs for companies.

Our advice

  • Ensure that there is a clear policy regarding unwanted conduct on the workfloor and specify this policy in a staff manual.

  • In the event of allegations of sexual harassment, investigate the facts. Preferably, have an independent expert do this.

  • If necessary file a report with the police.

  • Enforce the rules and abide by them yourself.

More information

Would you like us to devise a protocol on how to deal with unwanted conduct? Or would you like to commission an investigation of the facts? Please contact us.