According to the Subdistrict Court, the employer took insufficient action against an unsafe and unfriendly working environment. Hence, the judge awarded a substantial equitable remuneration to the employee, in addition to the transitional allowance. What exactly was at issue?

Facts

Since 1 November 2014, the employee has been employed by Optiver Services B.V. (hereinafter: Optiver) as a Trader. Employee is a British national and joined Optiver immediately after graduating as a mathematician. Employee was appointed to a level 1 trader position on 1 January 2016, after completing her trader trainee program. As of July 1, 2017, employee was promoted to a level 2 trader position based on the excellent score. Beginning in 2017, employee's ratings in the end-of-year evaluation decreased. On January 22, 2020, in an email, Employee informed Optiver that due to the harassment and gender discrimination she experienced, she could no longer work for Optiver, but was open to an amicable settlement. After a meeting, the employee took advantage of Optiver's offer to take leave, with payment of her regular salary. On 11 September 2020, Optiver offered the employee a termination payment of € 277,556.03 gross, including transitional compensation. In these proceedings, the employee requested that the employment contract be dissolved with the award of fair compensation of € 699,400, as well as the award of transitional compensation of € 61,811.

Judgment

In the opinion of the Subdistrict Court, the facts and circumstances that have emerged are of such a nature that the employment contract should end immediately or after a short period of time, all the more so since this is a request for dissolution submitted by the employee and she has indicated that she no longer wishes to remain employed by Optiver. The employment contract is therefore terminated.

Together with the employee, the Subdistrict Court held that Optiver has failed to comply with its obligation as an employer to ensure a safe working environment. Optiver has treated the interests of its female employees, including the employee, too lightly.

The employee was personally confronted with sexual and female-unfriendly remarks and innuendos. Optiver was aware of this, but took no or insufficient action to improve the situation for the employee.

It is an established fact that from the end of 2018, together with other women within Optiver, the employee has called attention in the organization in various ways to the sexually charged and woman-unfriendly corporate culture that she experienced. The employee also rightly brought forward that a clear complaints procedure was lacking within the company and that it was unclear to whom and how she could address complaints.

As an employer, it would have been up to Optiver to not only passively but also actively make sufficient efforts to ensure that the female traders could perform their work in a working environment that was pleasant to them.

It is ruled that Optiver acted in a seriously culpable manner with the actions described above, which action gives rise to termination of the employment contract in question. Optiver must therefore pay fair compensation. The Subdistrict Court considers it plausible that the employee would have functioned better within the Optiver team under different circumstances.

It is obvious that the employee would have achieved the average of eight years of service in a safe working environment, as she herself stated. However, it is not plausible whether this would have been sufficient for a promotion to a higher level. Under these circumstances, it must be ruled that the employee must in any event be compensated for the loss of income (including bonus up) to and including 2021. The employee should also be compensated for the stress and the possible risk that it will not be easy to resume her career at this high level. This leads to an equitable remuneration of € 350,000. Now that the parties have agreed on the starting points of the transitional compensation, this will be calculated at € 63,463.12 upon dissolution as of 1 May 2021.

Conclusion

It is important that the employer ensures a safe and pleasant working environment and, in that context, also provides clear rules and a complaints procedure. Failure to do so can be costly for the employer, as this judgment shows. Do you have any questions regarding this article? Please feel free to contact one of the employment lawyers at SPEE advocaten & mediation.