Sexual harassment in the workplace: do you, as an employer, comply with the statutory duty of care?
02 November 2022
Inappropriate behavior in the workplace, including sexual harassment, is in the news again. Recently, a professor of astronomy at Leiden University was suspended after an internal complaint investigation, revealing (among other things) years of abuse of power and sexual harassment. The university acknowledged that it looked away for too long and failed to take adequate action to protect the victims. Employers play a crucial role in preventing and fighting (sexual) harassment in the workplace. In this blog, you will read more about the employers' duty of care in the context of sexual harassment in the workplace.
Sexual harassment involves any form of verbal, non-verbal or physical conduct with sexual connotations which employees perceive as undesirable. Sexual harassment falls under the so-called psychosocial workload. Sexual harassment can lead to work-related stress and absenteeism and ultimately to long-term absence and possibly even occupational disability.
Employer's duty of care
The employer has a legal duty to take measures and provide instructions to prevent employees from suffering (psychological) damage during work. This applies under the Working Conditions Act. In addition, the employer is obliged to behave as a "good employer," which includes complying with the duty of care. The following will briefly discuss the various areas covered by the employer's duty of care.
Preventive policy, rules of conduct
The Employer is required by law to conduct a risk assessment and evaluation ("RI&E") and, based on this, draw up a policy to prevent sexual harassment.
The core of prevention is making it clear that sexual harassment is not allowed in the workplace. Clear and regularly communicated rules of conduct to staff can help in this regard. In addition, the employer should establish a policy on preventing sexual harassment and a protocol for enforcing this policy. In this regard, it is important to appoint an independent and professional confidential advisor, as well as a pre-established complaints procedure and complaints committee.
After receiving a complaint, the employer should first of all enter into a conversation with the complaining employee(s) and the defendant to properly hear both sides of the argument. After the initial hearing, parties must be presented with what has been heard so far and be asked to respond to each other’s statements. Anonymous complaints can give rise to an investigation, but must always be critically assessed in the context of this principle of fair hearing. Subsequently - if there is sufficient reason to do so - the employer should proceed to an investigation by an independent, impartial and expert party. The employer should proceed expeditiously and confidentiality should be guaranteed. Applying the principle of fair hearing (in Dutch: het toepassen van hoor- en wederhoor) plays a major role in the investigation. The accused and complainant should both be informed of the outcome of the investigation.
If the sexual harassment has been established after careful investigation, it is important that the employer imposes appropriate sanctions on the accused. In this context, both employment and privacy law play a major role.
Aftercare in the context of restoring labor relations
Finally, providing proper aftercare for the victims (the complainants) is very important. This could include compensation for material and immaterial damage and offering coaching or psychological counseling.
Consequences of breaching the duty of care
When employers breach the legal duty of care, it is possible for victims to claim compensation from their employer. This can refer to material and immaterial damages, including legal costs, costs for a psychologist and compensation for psychological injury and damage to honor and reputation.
The Working Conditions Act provides that if there is a violation of the aforementioned obligations under the Working Conditions Act, the Dutch Labor Inspectorate can take measures and impose administrative fines ranging from EUR 340, - to EUR 13,500, -.
Do you have questions about what you as an employer can do in the context of preventing and countering sexual harassment in the workplace? If so, please contact one of our attorneys.