Employer Liability for Sexual Harassment
What options does an employee have who becomes a victim of inappropriate behavior by another employee (or the boss) in the workplace? Often, discussions focus on what punishment the perpetrator should receive: dismissal, or if they resign first, and potentially criminal prosecution. Read here what the victim can do.
Employer Liability
The employer is obliged to arrange the workplace in such a way that the employee is protected from harm (Article 7:658 Dutch Civil Code). This can also mean that the employer must ensure the employee does not become a victim of inappropriate behavior, including sexual violence. In a case at the Amsterdam Court of Appeal, the following circumstances were decisive for employer liability under this provision:
the employer had no written risk inventory and evaluation or action plan;
the employer had no complaints procedure for undesirable behavior;
the employer did not properly investigate the complaints; and
the perpetrator was only given a one-day suspension and a warning.
Fair Compensation
It is also conceivable that an employer who similarly fails to provide a safe working environment acts seriously culpably towards an employee who becomes a victim of inappropriate behavior. There are many examples in case law, including from the Dutch Supreme Court, often involving the employer themself committing (sexual) misconduct. However, it is certainly not excluded that the employer can also be held liable if the perpetrator is a colleague.
100,000 Euros
A good example of such a situation involves a dentist who sexually intimidated his dental assistant during a training course abroad. He made inappropriate and sexually suggestive remarks and gave the employee an unsolicited kiss on the forehead. The employee suffered from the incident and eventually went on sick leave. When the disturbed relationship ultimately led to a dismissal procedure, the subdistrict court awarded the dental assistant fair compensation of 100,000 euros, which in this case amounted to two and a half years’ salary.