Regulations on sexual harassment in the workplace in the Netherlands

Under the Dutch Working Conditions Act (1999) (in Dutch: Arbeidsomstandigheden wet) (“the Act”) employers are obliged to create a safe and healthy working environment for their employees. The Act applies to all employers and employees in the Netherlands. The Act also applies to international employers who have employees working in the Netherlands. Both the employer and employee are subject to statutory obligations, as both parties are responsible for health and safety at work. The specific rules for employer and employee to ensure a healthy and safe workplace are further laid down in the Working Conditions Decree (in Dutch: Arbeidsomstandighedenbesluit).

Regarding sexual harassment in the workplace, employers are required by the Act to prevent and/or limit inappropriate behaviour (discrimination, sexual intimidation, aggression and violence and bullying).

The Act states:

"The employer shall operate a policy aimed at preventing employment-related psychosocial workload, or limiting it if prevention is not possible, as part of the general working conditions policy" (article 3, sub 2 Dutch Working Conditions Act).

Employment-related psychosocial workload is being described as: "the factors direct or indirect distinction, including sexual intimidation, aggression and violence, bullying, and work pressure, in the employment situation that cause stress" (article 1, sub 3e the Act).

Furthermore a general prohibition on sexual harassment by the employer is included in the Civil Code under article 7:646 Dutch Civil Code and article 1a of the Equal Treatment Act (1994) which states that "sexual harassment  is understood: any form of verbal, non-verbal or physical behaviour of a sexual nature of which the purpose or effect is the violation of a person's dignity, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment".

Employers are legally obliged to prevent any form of sexual harassment. To be able to do this properly, employers are required to map out all occupational health risks, including sexual harassment, in a Risk Inventory and Evaluation Plan (RI&E plan) (article 5 of the Act). Once these risks are in scope, the employer is obliged to prepare a so-called Plan of Action which is based on the RI&E. The Plan of Action must include what the company is going to do to prevent identified risks and within which timeframe. Employees should be informed about the Plan of Action, about the risks and measures to be taken by the company. The employer must demonstrably carry out all these actions.

In the context of the Act, the Inspectorate SZW supervises, among other things, psychosocial work risks, including sexual harassment. In the event of a (suspicion of) violation or abuse, employees, representatives of a trade union, works council and/or staff representation can submit a complaint to the Inspectorate SZW. As a rule, an investigation follows. An investigation by the Inspectorate SZW is aimed at tracing the cause, cancelling the violation and preventing a recurrence.

Employers are legally obliged to provide a safe working environment for their employees and must have adequate complaint procedures and disciplinary protocols in place. In the case of a sexual harassment complaint filed against an employee, employers should strictly follow their own internal procedures and protocols and should not always choose (instant) dismissal as a sanction. This obviously starts with employers ensuring that the company has a policy against (amongst others) sexual harassment which clearly sets out the definition of sexual harassment, who can file a complaint, with whom and how the complaint will be handled. The employer should actively share such policy with employees and educate management in order for them to recognise and prevent deviating behaviour. The policy should also include disciplinary sanctions which can vary depending on the severity of the complaint filed and other relevant facts such as the persons involved and even the culture of the company. The Inspectorate SZW advises companies to appoint an independent complaints committee that can monitor and handle complaints. In practice companies usually opt for an internal committee or individuals who are designated to handle complaints and tend to involve lawyers to support the further handling of these types of complaints.

We have seen that the #MeToo movement has increased the number of harassment or other type of claims against an employer or against an employee. The movement has also shaped how employers try to identify the risk of such claims and how employers act once a claim related to sexual harassment materialises. Because of the #MeToo movement, more and more people are empowered to come forward and raise issues within their companies or organisations.

Also notable is the continued media focus on how Dutch courts rule when there is employment litigation related to improper (sexually related) conduct at the workplace. Based on case law, it can be concluded that such behaviour does not necessarily lead to harsh rulings on employees who are accused of sexually improper conduct for various reasons. These cases show that employers should ensure that proper policies regarding sexual harassment-related behaviour and complaints are in place and also ensure they comply with these policies. In recent years, we have seen a shift in case law with an increase in the number of successful termination cases based on improper behaviour and we can conclude that this shift is permanent. This is partly due to the continued public focus on addressing and identifying sexual harassment. In some industries, we still see an increase of (sexual) harassment complaints. In practice, the scope of such complaints is often broader and not limited to sexual harassment only. Employers should be aware and thoroughly investigate any suspicion or complaint of (sexual) harassment, ensuring appropriate action within their organisation. This does not mean that each complaint must automatically lead to workplace investigations conducted by third parties. The policies of the employer should give guidance on this. In some industries, covenants have been introduced to guide employers on this topic.

We see that preventing sexual harassment and empowering employees to speak-up remains a high priority for employers, so we would say it is in the red category for employers in the Netherlands. The subject still receives much public attention and the number of (sexual) harassment claims is still increasing. The role of the employer plays an important factor in the court’s assessment of whether an employment agreement should be terminated due to improper (sexually related) conduct at the workplace. It is therefore important for employers to keep this topic on their radar and, if needed, take appropriate action in accordance with applicable law and the internal policies. The internal regulations on workplace safety play an important role.

Partly because of the #MeToo movement, the new Sexual Offences Act came into force in the Netherlands on 1 July 2024. As a result, victims of sexual violence and sexually transgressive behaviour will be better protected under criminal law. The new Sexual Offences Act criminalises more forms of sexually transgressive behaviour, including online behaviour. Another important element is that it is no longer be a requirement to prove coercion in cases of sexual assault and rape.

In addition, the Dutch Government Commissioner on prevention of sexual misconduct and sexual violence has published ‘the Guide to Reporting Sexual Harassment in the Workplace’ on 13 May 2024. The Guide is for those responsible within organisations for preventing and tackling sexual harassment. It is designed to help employers make organisational changes to ensure that sexual harassment no longer takes place. It also includes practical advice for employers on how to better deal with reports of sexual harassment at the workplace.

Sexual harassment is still a problem in many sectors in the Netherlands. At the time of the #MeToo movement, there were many complaints of harassment in the media industry. This sector continues to receive attention. Meanwhile, recent studies show that the healthcare sector is one of the most affected by sexual harassment. In 2023, there was a significant increase in the number of complaints of sexual harassment by healthcare professionals compared to 2020.