Intimacy

When an employee in the human resources department of the United Nations accused the Dutch High Commissioner Ruud Lubbers of sexual intimidation, his employer immediately ordered a thorough investigation of the matter. But what requirements do Dutch courts impose on companies and organisations where such allegations are made? When should allegations be taken seriously and how should you deal with this? And what influence are you allowed, as an employer, to exert over the love lives of your employees?

Intimacy at work: it can make time spent at work much more enjoyable, but can also be the source of unpleasant, sometimes intolerable, tension. Intimacies between colleagues or between a subordinate and his or her supervisor can be innocent, but they may also be experienced as unpleasant or even intimidating by those involved and others affected. Whatever their effect, it is a fact that intimate relationships in the workplace are an unavoidable occurrence within most organisations. It is estimated that one in ten people has experienced sexual intimacy at work and one in ten met their partner at work. Employers wishing to avoid difficulties in this area cannot ignore this phenomenon.

Court judgments are regularly published in cases concerning employment disputes in which intimacy at work, whether mutual or unrequited, plays a key role. Examples chosen at random from cases in recent years include telephone costs escalating out of control due to a love-struck employee making repeated calls to Finland from his place of work in the Netherlands, an extramarital affair at work that becomes public knowledge, anonymous and sexually-oriented phone calls to a colleague, recording video footage of the legs and part of the lower body without the subject’s knowledge or consent (after writing poetry and a love letter), an employee entering into a romantic relationship with an employee of a competitor (with the risk of “pillow talk”) and an employee telling dirty jokes and discussing a television programme about sexual fantasies. Clearly the Lubbers affair is by no means unique in this regard.

Many employers are unsure of the best way to deal with intimacy in the workplace, both mutual and unrequited. At what point has a boundary been crossed and has attention become unwanted? How should you deal with allegations? Does unwanted intimacy give cause for summary dismissal, even if an employee has had an impeccable record for years? And even where intimacy is mutual, at least at first, it can cause problems. How do you deal with the situation where love cools between a couple whose jobs require them to keep seeing each other every day? Are you allowed to separate employees who are romantically involved with one another? The legislation and case law show that such questions crop up regularly in everyday practice.

Prevention is better than cure

Obviously an employer should take no account of what people get up to outside work, in their private lives. However, amorous approaches at work can have a significant influence on the workplace atmosphere. Generally the effect is positive, but unfortunately in some cases it can be negative. No court would blame you for trying to keep control of events taking place within your organisation. In fact, Article 4(2) of the Dutch Health and Safety at Work Act provides that: “The employer shall, as part of his general policy on health and safety at work, operate a policy with respect to protecting employees against sexual intimidation and against aggression and violence.” Article 7:611 of the Dutch Civil Code also imposes an obligation to act as a “good employer”, which according to decided cases includes exercising due care in dealing with this subject. In other words, you are expected under the legislation, and by the courts, at the very least to take, in the interests of a positive working atmosphere, a pro-active approach to preventing sexual intimidation. Failing to operate a policy on this issue can result in a heavy fine from the Dutch Health and Safety Inspectorate. In addition, if accusations of sexual intimidation result in an employment dispute that ends up before a court, failing to apply a consistent policy can result in liability to pay compensation (or increased compensation) or a large termination settlement, to either the complainant or the accused or both.

Sexual intimidation

Many employees and managers are uncertain about what behaviour can be classified as sexual intimidation. This question is answered in the Health and Safety at Work Act: “Undesired sexual advances, requests for sexual favours or other verbal, non-verbal or physical behaviour (…)”. Another requirement is that it should be stated or implied that the behaviour in question is a pre-condition of employment or “the basis for decisions that affect that person’s work” or “intended to affect the person’s performance at work and/or to create an intimidating, hostile or unpleasant working environment”. So the distinguishing feature is not, as is often assumed, the action, such as pinching someone’s bottom or stroking their back, but the intention experienced by the person concerned on the basis of such advances, in respect of which he or she at some point tries to make clear that it is unwanted.

Careful investigation

What is the best way for you, as an employer, to deal with a complaint about sexual intimidation? This question is generally met with the obvious response that you should conduct a careful investigation of the facts. But what is a careful investigation? A careful investigation of the facts would include at least taking the allegation seriously, giving all those concerned a hearing and confronting them with the statements made by the other party or parties (i.e. hearing both sides). Interviewing the accused for ten minutes will not generally constitute a careful investigation, particularly if he or she has an impeccable record over many years of employment. Ideally, the investigation should be delegated to a committee or a person appointed to deal with confidential issues, some person or persons who will

be able to assess the situation with some distance and won’t allow themselves to be blinded by any feelings of sympathy or antipathy. You are also expected to deal with the complaint confidentially with regard to the persons concerned. Decided cases show that an employer will always be held responsible for insufficiently careful investigation, even where the task has been delegated. Failure to investigate carefully almost always results in a large termination settlement payment or liability to pay another form of compensation, including to the accused.

Sanctions

Where careful investigation of the facts has established that a complaint about unwanted sexual attention is justified, a sanction must be imposed. The sanction must be proportionate to the seriousness of the complaint and the background of the accused. Possible options include a reprimand, a note on the employee’s appraisal, a transfer, termination of the employment agreement (if appropriate without a termination payment) and, in the most serious cases, summary dismissal. The court will take into consideration whether the employee operates a pro-active policy against unwanted advances and whether the employee accused has an otherwise impeccable record. Examples of situations where sub-district courts terminated the employment contract of the employee who was guilty of sexual intimidation include the case of an archive assistant who plagued his female colleague with anonymous telephone calls, that of two employees who during a night shift grabbed a female colleague against her will, partially undressed her and took a photograph of her and that of the employee who, after sending his secretary two poems and a love letter, made a video recording of her legs and lower body without her knowledge or permission.

Contractual provisions about relationships

Some employers even go a step further to prevent situations arising. For example, their employment contracts state that employees who are romantically involved must behave as though this is not the case when at work. They take the view that colleagues shouldn’t have to witness intimate exchanges or discussions of private matters. Other employers simply don’t tolerate relationships between employees. A possible sanction is a transfer to a different branch within the company. Sub-district courts generally approve this policy, provided that it is consistently applied and the employee’s personal circumstances have a significant negative effect on the proper performance of his work or threaten to damage the employer’s interests seriously in some other way.

One case involved an employee in a permanent relationship with a colleague who, according to her job description, was supposed to be in charge of him. The Sub-District Court did not think it unreasonable that the employer considered such a relationship undesirable. If an employer foresees tensions arising between employees who are romantically involved with respect to the performance of their jobs and fears that this will negatively affect their fulfilment of their positions, it may be wise to separate the lovebirds. In this case, the Sub-District Court dissolved the employment contract of the employee who refused a transfer without awarding a termination settlement.

Decided cases also offer examples of situations where advances are not, or cease to be, requited. Rejecting such advances or ending a relationship then creates tension in the workplace. A familiar situation, and one which comes up frequently in decided cases, is where the boss makes advances to his secretary and she rejects them. Following which she’ll be best advised to look for a different job. In that case, the courts expect a “good employer” to try to intervene to find work for the employee in a different position. If the subordinate then ends up having to leave despite this, the sub-district court does not generally place any special blame on him or her for the situation that has arisen. With the result that the departing employee who rejected the advances can generally expect a significant settlement.

Tips:

• Draft a protocol (a single sheet of A4 may suffice) stating how you deal with complaints about sexual intimidation and include this in your employment contracts.
• Consider developing a company policy on how to deal with romantic relationships at work.
• Apply any stated policy strictly.
• Appoint a confidential contact person to whom your staff can take any complaints.
• If a complaint is made, give all those involved a hearing and confront them with the statements made by the other party or parties.
• Deal with all information you receive in connection with the complaint confidentially.
• Only apply a sanction after a careful investigation of the facts.
• Ensure any sanction is commensurate with the nature and seriousness of the intimidation.
• Try to find a solution to deal with broken relationships or rejected advances before considering dismissal and investigate as part of this process whether a transfer is an option. Keep a written record of your efforts.

Convent

The fact that dramatic love affairs in the workplace don’t just take place at the United Nations, in films like Disclosure and in soap operas is illustrated by the story of the convent of the Congregation of the Little Sisters of St. Joseph in Heerlen, a care home for elderly nuns. A relationship developed between an employee and the management secretary of the foundation, resulting in both of them getting divorced. The two employees moved in together. The ex-husband of the management secretary, who also worked at the convent, went on long-term sick leave as a result. The employer concluded that an unacceptable situation had arisen “partly in consideration of the ethical views of the inhabitants”. However, the Sub-District Court held that entering into a loving relationship was a fundamental civil right of every individual. The Sub-District Court did not therefore pronounce any view on the relationship. It held that the tensions that had arisen between the parties were mainly the fault of the employer, as it had adopted the view that the relationship must result in dismissal and had then waited nine months before taking action. The main reason that the employer was blamed was the failure to have an established, consistent policy (Sub-District Court of Heerlen 14 March 2003, JAR 2003/96).