Wassenaar councillor against female councillor: 'curtains closed and clothes off' sexual harassment in the workplace and employer liability

Excitement has recently arisen in Wassenaar over an out-of-control drinking binge that allegedly took place until around five in the morning at the town hall, after the town council meeting. An alderman was then allegedly guilty of sexually harassing a female councillor. The councillor allegedly told her that he would "teach her a lesson in his room, with the curtains closed and the clothes off". The mayor has decided to launch an independent investigation into the events. The mayor has also promulgated some measures to prevent sexual harassment.

There has been an increase in the number of people facing sexual harassment. For instance, an average of 10% of the workforce would have experienced sexual harassment in the workplace. Sexual harassment comes in many forms. It can include ambiguous or sexist remarks, intimate questions about private life, unnecessary touching and peeping, as well as sexual assault and rape. The consequences for the victim should not be underestimated. Harassment can result in functional problems, health complaints and absenteeism, among other things.

An employer has a duty of care to ensure a healthy and safe working environment for its employees. This includes preventing and combating sexual harassment. An employer is obliged under the Occupational Health and Safety Act to draw up a policy to protect its employees against sexual harassment. In this policy, the employee can include preventive and repressive measures. Furthermore, the employer has the task (and example function) of making clear which behaviour is tolerated and, more importantly, which behaviour is not. In doing so, it is important that an employer takes a complaint of sexual harassment from an employee seriously, conducts an investigation and tries to limit the employee's (psychological) damage as much as possible.

An employee who has faced sexual harassment in the workplace can tell his employer hold it accountable for the damage he suffers as a result. To this end, the employee will have to make it sufficiently plausible that sexual harassment took place. Here, the legislator helps the victim in the burden of proof. When the suspicion - and thus not the actual occurrence (!) - of sexual harassment has been sufficiently established, the employer will have to prove that no sexual harassment took place or that he fulfilled his duty of care (i.e. took adequate measures to prevent the harassment). If he cannot prove this, he will generally be liable for the damage the employee suffers and has suffered.

Tip: On 22 February last, colleague Mr H.P.A.J. Kamp gave an interview on Radio West in which he gave his views on the Wassenaar sexual harassment case.