The Netherlands: Unacceptable behavior (#MeToo) is not a legitimate ground for summary dismissal due to the working atmosphere
Court of Amsterdam 12 June 2019, ECLI:NL:RBAMS:2019:4163 is available online (Dutch only) here.
In the present case, the employee was working full-time for almost two years as an online designer for an e-commerce company with a total of 15 employees. During a company party the employee, who was 38 years old at the time, made sexual comments and made unwanted advances towards another employee, who was 22 years old, in the form of touching her. She filed a complaint in accordance with the company’s complaints procedure, which led to an investigation from the complaints committee. The investigation included WhatsApp- and Instagram conversations between the employees. The employee was exempted from work during the investigation, without payment. A settlement agreement for dismissal was refused by the employee. The complaints committee judged that the employee was guilty of sexual intimidation. Following the judgement, the employer fired the employee for ‘an urgent reason’ (summary dismissal).
For a summary dismissal, the law requires an urgent reason, with immediate notice of the reason to the employee (Section 677, Book 7 of the Civil Code). The judgment depends upon the view of all circumstances of the case, particularly the nature and seriousness of the behaviour, the duration of the employment and personal circumstances, including the consequences of the dismissal for the employee, all play an important role. The employee stated that his acts did not qualify as unacceptable behaviour, when performed without malicious intentions, and also noted that the other employee never mentioned that she did not like the approach he had taken. Furthermore, the employee stated that his side of the story had not been heard and also that he had not received a warning.
The court firstly observed that it is a generally known fact that sexually unacceptable behaviour is a trending topic due to the ‘stormy’ #MeToo movement. The common trend in court rulings is that certain behaviour is not acceptable. This especially applies to certain unwanted touches, such as the ‘hand on the buttock’. Only rarely is it a mistake, particularly when it has happens more than once. An employee must be blamed for such behaviour. In principle, it does not matter if the other employee gave any cause for the approach. This applies all the more so when considering the age difference between the two employees concerned. Certain behaviour can be expected from a more experienced employee, with a family, if he acts towards a more inexperienced employee. For certain behavior, the judgment reads, a warning is not necessary because you ‘just do not do that’.
However, this behaviour does not directly result in a legitimate summary dismissal. All circumstances of the case need to be taken into account. The acts of the employee are not acceptable and he should have known better. Yet, in this specific company informal manners apply. The WhatsApp-conversations included funny, but also sexual and racist pictures and videoclips. An employer that accepts certain behaviour during employment, cannot punish moral reprehensible behaviour as any other employer would. The judge realised that an informal working atmosphere is not unusual in a young and ‘self-styled’ company. The downside of such a working atmosphere is that the employer needs to be aware of the shared responsibility for creating an atmosphere where the lines of acceptable and unacceptable behaviour are blurred, all the more so if the employer encourages contact outside of the working environment or if company trips abroad are mandatory for all employees.
In conclusion, there was no doubt as to the employee’s culpability for his actions, and yet the circumstances were nevertheless insufficient to support a legitimate case for a summary dismissal. The employee received €1.000 for fair compensation and one month’s salary fixed compensation, due to the period of notice.