What to do about #MeToo?

The #MeToo movement began on social media in October 2017 following the accusations of sexual abuse levelled against the film producer Harvey Weinstein. The #MeToo movement encourages victims of sexual harassment to tweet about it. After this hashtag was launched, a lot of people  started talking about the sexual harassment they were suffering at work. Since then, the topic has been high on the agenda of many employers.

According to research carried out by GQ | Littler (please click here), a UK-based boutique firm specialising in employment law, 71% of UK companies have taken action in response to the #MeToo movement. Another Littler study (please click here) revealed that 79% of European employers have taken action to eliminate sexual harassment at work. Many companies now have policy to combat sexual harassment. This mainly involves the introduction of new investigative procedures.

Employer’s obligations

This focus and the action taken are justified. The fact is that an employer must ensure a safe working environment and, by doing so, it plays a key role in preventing sexual harassment. This is not only a moral obligation but also a statutory requirement: under the Dutch Employment Conditions Act (Arbeidsomstandighedenwet), preventing sexual harassment has to be part of an employer’s working conditions policy. In addition, according to equal treatment legislation, sexual harassment could constitute prohibited discrimination, with the employer possibly being liable for any harm suffered by the employee as a result of sexual harassment at work. Sexual harassment can also bring about a negative working atmosphere and a culture of fear and lead to lower productivity.

In a nutshell, there is every reason for employers to have a good, clear policy. To make it a success, it needs to be made clear to employees what conduct is and – more importantly – is not allowed at work. This can be done by drawing up rules that define proper and improper conduct and set penalties for violations. Employers are also recommended to establish a protocol that describes the procedure for reporting incidents and carrying out investigations.

If an investigation is needed, it is important that an independent party who is sensitive to the interests of all concerned carries it out. Experience shows that safeguarding the privacy of those involved proves to be a particular challenge. This is crucial, however, because if an investigation concludes that no sexual harassment took place, the persons concerned have to be able to continue working relatively unscathed. An employer can avoid being accused of bias by hiring an external agency. Appointing a person of trust can also help maintain calm in a company. It goes without saying that, if a procedure is prescribed, then the employer must strictly adhere to it. If it doesn’t, it will not get off lightly in court.

Dismissal

The penalty imposed for sexual harassment is dismissal following a court order for dissolution of the offender’s employment contract. The employment contract is dissolved on the grounds of seriously culpable conduct. Dismissal is certainly called for in the case of employees who are (or should be) aware of their company’s policy on sexual harassment.

Providing clear information is therefore essential in order to be able to punish employees who engage in unacceptable conduct. Such information can be general as well as specific: a previous warning can result in an employee being penalised heavily for a new but relatively minor violation. In the world of employment, forewarned is forearmed. Of course, a previous warning is not necessary if a violation is so serious that immediate dismissal is required.

Defendants sometimes successfully plead the existence of a “touchy-feely culture” at work, meaning that their conduct should be considered to be within permissible bounds. That does not alter the fact, however, that some conduct simply cannot be tolerated regardless of the physical contact accepted in the working environment concerned.

Another aspect that is relevant to whether dismissal is justified is the position that the sexual harasser – i.e. the offender – holds in relation to his/her colleague (the victim). If the offender has a managerial position and he/she has abused it, that would count even more heavily against him/her and summary dismissal would then be indicated. Although the courts used to be rather lenient about such conduct, we now see them punishing it more severely.

#MeToo has therefore brought about considerable changes. Whether it has led to a safer working environment remains to be seen, but the focus it has created is a positive development. The fact is that if an employee sticks their neck out and reports an incident of sexual harassment, they should be able to rest assured that something will be done about it.

Wouter Engelsman (we@clintlegal.com / +31 20 820 0330)