The recent #metoo revelations have led to more discussion of sexual harassment. Of course, the situation in the workplace is part of this debate, because, unfortunately, unwelcome advances frequently take place there. These matters are often delicate, and a Dutch Court of Appeal ruling in The Hague last April only confirms that dealing with such accusations can be a tricky business.
The central question in this case was whether it was possible, based on statements from four employees, to conclude that there had been sexual harassment to an extent that would justify a summary dismissal. In their statements, the employees reported, among other things, friendly touching around the waist, a kiss on the neck, sexually explicit comments (“I would like to have a threesome with you sometime”) and having their buttocks and breasts touched by the alleged harasser. At first sight, these actions and remarks seem objectively unacceptable. However, the Court ruled that this behaviour alone was insufficient for a summary dismissal.
According to the Court, the circumstances in the workplace were a decisive factor in this ruling. The Court considered that the employees’ statements presented an image of a very relaxed workplace atmosphere, where physical contact such as hugging was combined with a free and intimate style of communication, including regarding personal (sexual) matters. The supervisors were aware of this atmosphere, but never took measures to put a stop to it. Additionally, the alleged harasser was never reprimanded regarding his “wandering hands”, which the employer could have been expected to do. The employer only saw the need to address the issue when a new intern indicated that she did not appreciate such behaviour. Because the employees usually initiated hugs, none of them had reported coercion by the alleged harasser and none of them had tried to confront him regarding his behaviour. The employees also still confided in him as a trusted colleague. In view of this, the Court considered that the circumstances did not justify summary dismissal. The employer should have given the alleged harasser a severe formal warning instead.
Often one of the biggest problems with accusations of sexual harassment can be the lack of evidence. In most cases the only available evidence is in the form of statements from the ‘victim’ and the ‘accused’. The situation gets a lot easier when there is additional evidence, such as incriminating emails, WhatsApp messages, camera footage and/or witness statements. It is clear from the above that employers must ascertain that they have a full understanding of the facts, but more importantly, they must also assess the circumstances in which the behaviour concerned took place. Having a clear policy on sexual harassment and unwelcome advances as well as an answer to whether or not the employee was confronted regarding his (or her) behaviour is also relevant.
Lastly, the interests of both parties should be handled with care. Sometimes the first impulse is to protect the victim and to place the accused on involuntary leave. But, it is important to be cautious, because an accusation can be very damaging to the accused, particularly when the accusation turns out to be false.
Because of these complications, we often advise hiring an independent agency to investigate claims of sexual harassment. The agency can hear all the parties, take statements and have the accused respond to them. This gives the employer full view of the facts and the right to hear and be heard will have been respected. In our experience, a judge will take an objective report such as this and the advice that follows it, into account in his or her judgment.