Sexual harassment is “any form of verbal, non-verbal or physical conduct with a sexual connotation which has, as its object or consequence, the dignity of a person being impugned, in particular when a threatening, hostile, insulting, humiliating or offensive situation is created”^*3. In practice, this could consist of offensive touching, sexual comments, sharing sexual pictures or videos, or unwelcome advances. In order to qualify as sexual harassment, the offender does not necessarily have to be aware of their behaviour. The perception of the victim prevails over the intent of the offender.

Measures to be taken by employers in the Netherlands

Employers are responsible for creating a safe workplace, identifying risks at the work place and taking appropriate measures to ensure employees are safe. Therefore it is recommended that they adopt a clear and understandable policy on (in)appropriate conduct^*4. This policy should contain guidelines on appropriate behaviour, preventative measures, a complaints procedure and a set of disciplinary measures for violations of the policy. Employees could also be referred to an internal or external confidential advisor/counsellor or both^*5.

Special attention should be given to employees in a management position. Because of the hierarchical relation to their subordinates, management should be aware of their position of power. It is up to the employees in a management position to guard against boundaries being crossed and to lead by example.

It is essential that employees are periodically informed about the Code of Conduct and how they can report transgressive behaviour. If cases of harassment remain unreported, this knowledge is present within the company and employers are not cleared of their responsibility, with all risks involved. For instance, the subdistrict court of Rotterdam recently awarded EUR 50,000 gross in compensation to an employee who was systematically (sexually) harassed by a director^_*6. The Court rejected the employer’s defence that the employee never reported the unwanted behaviour, because the employer had not set up proper reporting channels and the harassment came from a high-ranking person in a position of power, who had to lead by example.

In order to ensure that employees report unwanted behaviour, employers should establish an open corporate culture in which all employees can discuss uncomfortable feelings, dilemmas and fears in an accessible way. Moreover, transgressive behaviour will likely be repeated/continued if employees are not willing to call each other to account. Therefore, it is very important to develop a culture in which employees are given the proper tools and confidence to speak up.

1. Ongewenste seksuele aandacht klanten bij 1 op 5 jonge vrouwelijke werknemers (cbs.nl)

2. Pursuant to Article 7:658 of the Dutch Civil Code employers also have a responsibility to prevent damage to employees at the workplace.

3. Article 7:646(8) of the Dutch Civil Code.

4. The adoption of such a policy may be subject to the right of consent by a Dutch works council.

5. Please refer to our recent know how update in which the (upcoming) obligation for employers to have a confidential advisor/counsellor is discussed in more detail.

6. Subdistrict Court Rotterdam, 30 March 2022, ECLI:NL:RBROT:2022:2673