Transgressive behaviour in the workplace: Always seriously culpable?

By Jeffrey L. R. Kenens, TeekensKarstens advocaten notarissen

Led by the #MeToo movement, the topic of transgressive behaviour in the workplace is more pertinent than ever. The Netherlands are no exception. The popular talent show, The Voice of Holland, for example, was taken off the air in early 2022 because employees of the program had been harassing candidates. The call for stricter legislation on this subject is therefore great. Various experts have argued for a rule of thumb that transgressive behaviour in the workplace in a dependency situation should always qualify as seriously culpable behaviour. However, against all expectations, the Dutch Supreme Court did not agree.

Whether an action is qualified as either culpable or seriously culpable behaviour is decisive for the question of whether the harassing employee will receive a statutory severance payment. In the event of culpable conduct, the employee is eligible for a severance; however in the event of seriously culpable conduct, they are not.

The case in the Supreme Court concerned a dance teacher who had been guilty on several occasions of sexually excessive behaviour towards his students. The dance teacher defended himself by arguing that the touching of students was functional for the course and that the role of the employer (the school) left much to be desired. The Supreme Court ruled in favour of the dance teacher. A rule of thumb on transgressive behaviour would make the employer negligent.

The employer has a responsibility to prevent transgressive behaviour in its organisation as much as possible, and to act against it if there are signs of transgression. In this case, although the school board had issued two warnings to the teacher, they did not subsequently monitor well enough whether the teacher had complied with the rules. As a result, the employer was also culpable, and the employee was entitled to a severance payment.

It is apparently still too early for a groundbreaking decision in the field of transgressive behaviour in the workplace.

Published: Employment Law Newsletter, No.13, Autumn 2022l Photo: MandriaPix - stock.adobe.com