12 April 2022

Transgressive behavior in the workplace, what could an employer do about it?

Category: Employment law

#MeToo has been a worldwide phenomenon since 2017. The hashtag was shared millions of times on social media. The reason for this: the scandals surrounding the American film producer Harvey Weinstein. Although this topic has never been out of the picture, there is now renewed attention for transgressive behavior in the workplace due to events at The Voice of Holland, Ajax, the police and in politics, among others. In view of recent events, it is advisable for employers to re-examine their policies on transgressive behavior.

What is transgressive behavior?

Transgressive behavior is a broad umbrella term used to describe any behavior that causes physical, mental or emotional harm to another person. To be able to speak of transgressive behavior, it is not required that the behavior was intended to be transgressive. Intentions are not relevant in that context. Transgressive behavior includes in any case sexual intimidation, aggression and violence, bullying and excessive work pressure.

Employer’s duty of care in the event of undesirable behavior

Based on the Working Conditions Act, the prevention and limitation of transgressive behavior in the workplace is an obligation that falls under the employer’s duty of care. The Working Conditions Act contains a general policy obligation for the employer regarding psychosocial workload. In addition, the implementation of the duty of care is tested against the standards of good employment practice. If the employer fails in his obligations, this can lead to liability for the damage suffered by the employee.

No clear regulations on transgressive behavior

The law offers employers little guidance on the above obligations. There is currently no legal framework for dealing with complaints and reports about transgressive behavior, nor have criteria been formulated to which a policy to be applied must comply. That there is a demand for this, is evidenced by the Petition to Improve Sexual Harassment (in Dutch: Petitie verbetering seksuele intimidatie) of 26 January 2022, the appointment of a government commissioner on sexual harassment and violence and the recent discussions about this in the media. The signatories of the above-mentioned petition requested the Cabinet to establish a legal framework for the above-mentioned matters.

How should the employer deal with the duty of care?

Although it cannot be deduced directly from the Working Conditions Act, it can be said that the duty of care is divided into a number of sub-obligations. The employer must in any event ensure the following

  • a preventative policy
  • a complaints procedure
  • a sanctions policy
  • measures aimed at restoring working relationships.

In order to meet these obligations, it is advisable for the employer to draw up a Code of Conduct that incorporates the above topics. Below, we briefly describe what such a Code of Conduct should look like.

Developing a Code of Conduct to create a safe work environment

Using a Code of Conduct could help to create a healthy and safe work environment. It can be included in the employment contract and/or staff handbook. It should make clear what behavior is tolerated and what behavior is not, what an employee can do if he/she encounters undesirable behavior and what happens if the Code of Conduct is breached. By implementing a Code of Conduct and providing information, everyone can see what behavior is and is not tolerated. With regard to rules of conduct, case law recognizes that general rules of conduct can have an aggravating effect on the assessment of the cross-border behavior.

If your company does not yet have a Code of Conduct, it is advisable to draw one up. To prevent this document from being forgotten, it is important to regularly bring the Code of Conduct to the attention of employees and ensure that it is accessible to everyone within the organization.

Handling complaints about undesirable behavior according to the Code of Conduct

Part of the Code of Conduct is how complaints about undesirable behavior are handled within the organization. The employer must take up complaints from employees about undesirable behavior in a timely manner and deal with them carefully. Although this has not been regulated by law, it can be deduced from case law that a careful handling of complaints is the case if both sides of the argument are heard, a proper and objective investigation takes place and the investigation is preferably carried out by an independent and expert complaints handler.

However, the timely handling of a complaint does not mean that the complaints procedure must be started immediately. After all, there must be reasonable grounds or a reasonable suspicion for this. Not every report of transgressive behavior needs to lead directly to an investigation. It is important to always carefully weigh the interests of the people involved.

If the employer has included a complaints procedure in its policy/code of conduct and this is not subsequently followed, the employer will, as a rule, be severely blamed for this. It is therefore important, when receiving a report of transgressive behavior, to also carefully follow and implement the policy as laid down in the Code of Conduct.

Do you have any questions? We would be happy to help you.

Do you have any questions about the above, or could we help you draw up and/or implement a Code of Conduct? Please feel free to contact our lawyers of the Labor Law team.