On Friday, June 24, the Supreme Court ruled in a long-running case involving a movement instructor at the Maastricht Theatre School. The ruling emphasizes the importance of an active approach by an employer confronted with sexually transgressive behavior, particularly toward the perpetrator of such behavior.
What happened?
The movement instructor had been addressed by his employer in 2006 and 2010 regarding inappropriate physical behavior. An agreement was subsequently made with him that any form of physical contact during his instruction was prohibited. However, the instructor transgressed again in 2017. He slapped a female student on her buttocks and gave another female student a ‘full body massage‘ on two occasions.
In response, the employer requested termination of the employment contract and a declaration that the employee had acted with serious culpability. The subdistrict court indeed found this conduct seriously culpable. However, two different Courts of Appeal subsequently ruled that while the conduct was culpable, it was not seriously culpable toward the employer. The Court of Appeal of Arnhem-Leeuwarden stated as its reason that the employer had also fallen short. He should have provided better guidance to the instructor and kept a closer watch, given the reports of transgressive behavior and the fact that the instructor gave massage and movement lessons.
The employer appealed this ruling in proceedings before the Supreme Court. The Supreme Court was also asked to establish a ‘rule of thumb’ that would determine that transgressive behavior in a subordinate relationship (teacher/instructor, supervisor/employee) is in principle seriously culpable, unless special circumstances apply. Such a rule of thumb would help combat sexually transgressive behavior in subordinate situations by making it clear that this type of behavior is in principle seriously culpable.
Supreme Court Ruling
However, the Supreme Court reaches a different conclusion, namely that there is no serious culpable conduct in this case. The Supreme Court indicates in its ruling that when assessing whether an employee has acted with serious culpability, all circumstances of the case must be considered, particularly the conduct or omissions of the employer itself. According to the Supreme Court, the requested rule of thumb does not sufficiently acknowledge the employer’s responsibility to prevent transgressive behavior in its organization and to take action against it when signals of transgressive behavior arise. However, there are valid objections to this ruling, as the rule of thumb explicitly allowed for special circumstances (such as the employer’s conduct in a particular case).
The Supreme Court emphasizes with its ruling the obligation that employers have to ensure a safe working environment. When sexually transgressive behavior occurs, an employer is expected to take sufficient measures and adopt an active approach toward the perpetrator of the transgressive behavior, continuing to address or guide them as necessary. Simply issuing a warning for a violation is insufficient.
Questions about transgressive behavior at work? Contact us without obligation at emilie@wesselvanderlans.nl.
The utmost care has been taken in preparing this blog. However, it only describes some main points and does not aim to be complete. Therefore, no rights can be derived from this blog.
