The film actor Kevin Spacey, who is known for among other things his key role in the Netflix series House of Cards, found that his work dried up in a few days after he was accused of unacceptable sexual behaviour. Accusations of unacceptable sexual behaviour occur with some regularity on the work floor. Can an employee accused of unacceptable sexual behaviour be sacked?
A brief look at the legal precedents
In a recent ruling on 8 November 2017, the subdistrict court of Utrecht recently deemed that it was not legitimate for an employer to immediately dismiss an employee on the grounds of sexual intimidation and aggressive behaviour. The employee had been dismissed because he had made several suggestive and intrusive comments to a temporary worker and had then dropped his trousers as a joke while commenting that stickers should also be placed on these. The female temporary worker had been brought in to add a new logo to work clothing. A logo did not need to be ironed on to these trousers. When the employer confronted the employee about the aforementioned behaviour, the employee called into question that the employer “should get his eyes checked”. The employer ended up dismissing the employee with immediate effect. At the hearing, it became clear that the employee was unaware of the fact that a logo did not need to be ironed onto the trousers. Furthermore, the employer did not raise any facts from which it could be gathered that the removal of the trousers had a sexual connotation. The subdistrict court deemed that the employee could not be dismissed with immediate effect.
On 18 April 2017, the Court of Appeal in The Hague also found that an employee could not be dismissed due to unacceptable sexual behaviour. In this case, there was a ‘culture of hugging’ on the work floor.
However, in the following situation, an employee could be dismissed due to sexual intimidation. The employee had among other things grabbed various employees and former employees from behind by their waist and had then made comments of a sexual nature. The employee received various written warnings for this: “no physical contact” and “keep a distance”. The employee did not keep to this, which may have counted seriously against him. So, the Arnhem-Leeuwarden Appeal Court ruled on 18 August 2016 that the employment contract with this employee had been rightfully terminated due to unacceptable sexual behaviour (culpable behaviour, the so-called “e ground”) and ruled that the employee was not entitled to a transition payment because the employee is considered to have been 'seriously negligent'.
Whether an employee can be dismissed due to sexual intimidation on the work floor depends on the circumstances of the case. The severity of the unacceptable behaviour plays a role as does the culture of the company. For less serious unacceptable sexual behaviour, courts generally rule that employees should first be given a warning before the employee can be dismissed. The type of job also plays a role. For instance, unacceptable sexual behaviour by a manager towards his or her subordinates will more likely lead to dismissal given the nature of the hierarchical relationship.
It is important to carefully study the facts and to establish these facts so that unacceptable sexual behaviour can be proven. Finally, consideration will need to be given to whether the employee is dismissed with immediate effect or whether an application is made to the subdistrict court to terminate the employment contract.
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