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 led to an increased interest in the way employers react to sexual harassment scandals in the workplace. Because of the #MeToo movement, more and more people are empowered to come forward and raise issues at their companies or organisations.

Also notable is the continued media focus on how Dutch courts rule in the situation that an employer and employee end up in court in the event that the employer wishes to terminate the employment agreement due 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 also show that employers should ensure proper policies regarding sexual harassment-related behaviour and complaints within their organisation are in place and ensure they comply with these policies.

Based on the law, an employee who has suffered from sexual harassment may claim compensation from the offender or employer under civil law. Compensation for harassment is potentially uncapped although the Netherlands is not known for its claim culture. In practice these types of claims are made by the employee against the employer where there is also a claim regarding the termination of employment. This may be the case if an employee is able to substantiate that she/he has become sick because of (for example) sexual harassment conducted by a colleague and the employer has failed to adequately protect the employee and/or handle the claim properly. Furthermore, an employee can file a complaint at the Inspectorate SZW and they may take further action against the employer.

As we are seeing more and more cases with different rulings in case law, we would say that it currently sits in the red category for clients in the Netherlands.

It should be noted that due to the #MeToo movement and the increase of people coming forward about sexual harassment, the Netherlands is contemplating the introduction of stricter criminal laws around sex crimes. Based on a new legislative proposal of Minister Ferdinand Grapperhaus of Justice and Security, one can be punished under criminal law if you know the other person did not want to have sex, and if you could have known that. When in doubt, the person initiating sexual acts has the duty to ask whether the other person is okay with what is happening.

As in many other countries the media industry has experienced a number of complaints. We are aware of the fact that the Inspectorate SZW has reached out to companies in the IT sector to verify whether their RI&E plan is in place, not specifically related to sexual harassment but to all types of behaviour that can cause stress with employees.