(Sexually) Transgressive behaviour

Transgressive behaviour is a social problem that regularly makes the news. If it concerns sexually transgressive behaviour by a famous Dutchman, the newspapers are full of it and you can't turn on the TV without hearing about it. It is at times like these that you, as General Counsel, in-house lawyer or HR manager, will undoubtedly receive a lot of questions on the subject.

What is sexually transgressive behaviour?

The legal term for sexually transgressive behaviour in the workplace is sexual harassment.
Article 7:646(8) of the Dutch Civil Code (DCC) and Section 1a(3) of the Dutch General Equal Treatment Act (Algemene wet gelijke behandeling, AWGB) state the following: "any form of verbal, non-verbal or physical conduct with a sexual connotation that has the purpose or effect of violating the dignity of the person, in particular when a threatening, hostile, abusive, humiliating or offensive environment is created." Examples include ambiguous comments, unnecessary/unwanted touching, leering, pornographic images at work and sexual blackmail.

Transgressive behaviour at work

Within your organisation, you must do everything possible to ensure a safe working environment for employees. You strive for a corporate culture free of sexual harassment, abuse of power, fear or insecurity. But how do you tackle this and what are you obliged to do under Dutch working conditions legislation? For example, is it necessary to establish a code of conduct or appoint a confidential advisor? What is the state of affairs regarding new legislation that has been announced? And is transgressive behaviour by an employee grounds for dismissal or summary dismissal?

Transgressive behaviour and employers' liability

Under Article 7:658 DCC, an employer has a duty to provide the safest possible workplace. The employer is required to take such measures and give such directions as are reasonably necessary to prevent an employee from being harmed in the performance of his or her duties.

The employer must identify the risks that exist in the workplace in a so-called RI&E (risico-inventarisatie en evaluatie) a risk assessment and evaluation. A plan of action must then be drawn up describing the measures to prevent the risks that have been identified.

Dutch working conditions legislation also stipulates that the employer is obliged to implement policies aimed at psychosocial workload (in Dutch: PSA), which includes policies aimed at protecting the employee from aggression, discrimination or sexual harassment. What does your organisation's PSA policy look like?  How have you implemented it in work processes and how do you enforce the policy?

Transgressive behaviour and secondary duty of care 

Your organisation not only has a duty of care to prevent, as far as possible, transgressive behaviour by and towards its own employees. It may also owe a so-called secondary duty of care to third parties, to prevent them, as far as possible, from becoming victims of another party's transgressive behaviour. Examples include students at an educational institution, patients at a healthcare facility, athletes at a sports club, customers at a shop and all other kinds of "visitors" who move around your organisation. Thus, in some cases, your organisation may be blamed for inadequately monitoring transgressive behaviour by primary parties, which could lead to liability for your organisation. What exactly does this secondary duty of care entail, and in what cases can your organisation be held liable for transgressive behaviour by primary parties that you should have supervised as a secondary party?

The impact of transgressive behaviour on agreements

To what extent might sexually transgressive behaviour by employees of your organisation towards customers or suppliers affect agreements you have entered into? Could this provide grounds for terminating or dissolving those agreements or even damages on the grounds of breach of contract? And in the latter case, to what extent can that liability be excluded (exonerated)? What contract law consequences are associated with references in commercial contracts to, for example, a "code of conduct" which stipulates rules on transgressive behaviour?

What can you contact us for?

• Legal check on PSA policy
• If you have received a claim (for damages)
• If you have received a fine from the SZW Inspectorate
• Assessment of a secondary duty of care
• Discussions or proceedings on secondary liability
• A check on regulations relating to the prevention of transgressive behaviour (code of conduct) or a complaints procedure
• The role of the works council in creating policies to prevent transgressive behaviour
• Advice on how to deal with a report of transgressive behaviour
• Advice on disciplinary action and dismissal

What can Van Benthem & Keulen do for you?

Please contact our specialists in the fields of employment law, liability law and contract law for all your legal questions about sexually (and other) transgressive behaviour, whether they concern workplace behaviour, employers' liability, your secondary duty of care or the consequences of transgressive behaviour for agreements.