Netherlands: Insufficient action by employer after reports of transgressive behaviour and must pay fair compensation of EUR 197,000 gross

importance of acting adequately as an employer when responding to reports of transgressive behaviour is once again highlighted in a recent ruling by the ‘s-Hertogenbosch Court of Appeal. This blog briefly discusses the ruling.

Facts

An employee works as a physical education (LO) teacher for an employer since August 20, 2001. In 2018, she files a complaint about bullying and sexual harassment by her section leader in five situations. In the absence of an adequate response to the complaint, the employee files two other complaints. The last complaint is assessed by an external complaints committee and found partially justified. The complaints committee advises the employer to, among other things, acknowledge to the employee that the management fails in the context of the complaint’s procedure, engage mediation, and pay extra attention to the management structure, the LO department, and the culture within the school. The only advice followed by the employer is to engage mediation.

The employee reports sick and is diagnosed with long-term depression with anxiety symptoms. Reintegration is unsuccessful and after three years of illness, the UWV (Dutch Employee Insurance Agency) grants the employer a dismissal permit on the grounds of long-term disability. The employee applies to the court for fair compensation. This is awarded and the employer appeals to the ‘s-Hertogenbosch Court of Appeal.

Judgement

According to the court, this was a case of transgressive behaviour in which the employer did not take adequate action. Only a firm discussion has taken place with the perpetrator, and no further sanctions have been imposed. Additionally, no further action has been taken, creating an unsafe working environment. Furthermore, the employer has not fulfilled its reintegration obligations. On the one hand, because the conflict with the perpetrator has not been resolved, and on the other hand because the employee has not recovered from her health complaints caused by the transgressive behaviour. Useful possibilities of the employee are not being utilized, and the employer is not taking an active attitude in the process. Precisely in view of the reason for reporting sick, it is incomprehensible, according to the court, that the employer is not making an effort to facilitate the employee’s return to work and is doing so little in that regard. The employer is acting seriously culpable and therefore owes fair compensation of EUR 197,000 gross. This amount consists of pension and wage damages caused by the sexual harassment.

Conclusion

The above judgment highlights the importance of employers acting appropriately and carefully in response to reports of transgressive behaviour. Unfortunately, in this case, the employer failed to do so and must now pay a substantial fair compensation.