In the Netherlands, employers are liable for harm suffered by employees during their work. This can include psychological damage due to sexual harassment. According to the Amsterdam Court of Appeal, this type of damage applies unless the employer can prove that it has fulfilled its duty of care.
'De Kampanje' is a cultural centre and theatre in Den Helder, the Netherlands. The employee at issue commenced her employment there as a hospitality assistant in 2013. She was 15 years old at the time. Between October 2015 and April 2016, the employee felt sexually harassed by the sous-chef during work.
'Come to papa'
For instance, the sous-chef would wrap his arm around her, hug her and hold her tightly. She would then tell him to let her go, to no avail. The sous-chef would also regularly kiss or hug the employee, and say he wanted to dance with her, pressing his body against hers. He also made comments such as 'come to papa' and 'you don't happen to have a 30-year-old twin sister, do you? Then it would finally be legal'.
Co-workers sexually harassed, too
One of the employee's co-workers had similar experiences with the sous-chef and reported this to, among others, the supervisor, the restaurant manager and the chef. The employee then had a meeting with the restaurant manager about the sous-chef, and the managing director was notified as well.
In November 2016, the employee made another report of sexual harassment to her supervisor; her father also discussed the matter with the managing director. The managing director told the father that the sous-chef had been suspended pending an investigation and had also received a written warning. However, no further action was taken, such as actually conducting the investigation.
The employee then suffered anxiety and subsequently reported sick. Analysis of the problem showed that her absence was a direct consequence of the working conditions. So as not to further harm her health, the employee resigned. She felt that De Kampanje had failed to fulfil its duty of care and was therefore liable for the harm she had suffered. The subdistrict court, however, dismissed the claims.
The Court of Appeal's assessment
On appeal, the Court of Appeal found that it had been established that the employee had suffered harm during her work. The employer could therefore only be released from liability if it could prove that it had fulfilled its duty of care.
Employers must, in a 'risk assessment and evaluation' (RI&E) record in writing all risks employees may encounter during work. Subsequently, an action plan must be drawn up, setting out the measures to prevent those risks. Employers must be able to prove any actions taken and must ensure that employees comply with the instructions and regulations that are aimed at preventing or mitigating the risk of, among other things, sexual harassment.
Procedural and substantive duty of care
The Court of Appeal found that the employer had not fulfilled its procedural duty of care: De Kampanje had neither an RI&E nor an action plan. At the hearing, it acknowledged that it had not complied with the working conditions regulations at the time. It asserted that there had been a 'latent' procedure in 2016 and that the matter had been discussed during staff meetings and management team and Heads of Department meetings. The Court of Appeal blamed De Kampanje for failing to act in accordance with this 'latent complaints procedure', despite three employees filing complaints about sexual harassment.
Further, De Kampanje had failed to conduct an investigation after new complaints had been filed against the sous-chef. The Court of Appeal therefore found that De Kampanje had also failed to fulfil its substantive duty of care, thus establishing that the duty of care had not been fulfilled. In view of this, De Kampanje is liable for the harm the employee suffered.
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