This week, a very topical subject: sexually transgressive behaviour during a staff party results in instant dismissal. But will this also stand up in court?
The facts
The case concerns X, an employee (1983) of the Municipality of Eindhoven who was summarily dismissed. He worked as a facility support employee in swimming pool De Tongelreep, for 25 hours per week at a salary of €1,533.93 gross.
On Saturday 9 October 2021, during a staff party, an incident took place between employee X and his female colleague (here referred to as Anna for convenience). At the start of the evening, in the presence of other colleagues, they discussed Anna's thesis for her Philosophy study. That thesis had a rather explicit sexual content. Later, X chatted with another colleague, and the conversation turned to the topic of Anna's thesis. X and the other colleague then talked about rough sex, made jokes and laughed about it.
Later in the evening, the employees started dancing. During the song 'Time of my life' from the movie Dirty Dancing, X and Anna were standing at the bar with another colleague. It was decided that X and the other colleague would lift Anna up together, just like in the movie. This attracted a lot of attention and everyone thought it was funny. Afterwards, X and Anna were standing together at the bar and talked about this lifting of Anna. Anna said something like 'that didn't go well, you weren't strong enough to hold me up, were you? X and Anna laughed about it together.
From this moment on the statements diverge. According to X, the conversation returned to Anna's thesis. X wondered why Anna would choose this subject and why she would indicate that her (much) older professor was so confronted with this subject. X thought of the earlier conversation and asked whether she also liked rough sex, to which Anna replied that that was not the issue. X then said something along the lines of 'so you don't want to be half raped by me? This is X's account.
But according to Anna, the conversation went differently: she indicates that X, in response to the comment about lifting him up while dancing, said that he was strong enough and "If I wanted to rape you, there is nothing you can do.” It is certain that Anna reacted strongly to X's remark and walked away. About two hours later, at the end of the evening, X saw Anna standing and walked up to her. He gave her a squeeze on the buttocks and he said something along the lines of "that was just a joke there earlier." Anna became angry with X.
After the party, on Sunday 10 October 2021 at 01:04, Anna wrote an email to the coordinator at her work, saying that she no longer wanted to work under X as a shift leader. She only wants to work with him in an equal position. Half an hour later Anna emails that she does want to report sexual harassment.
On Monday 11 October 2021 X and Anna spoke to each other. X apologised to Anna. In an email to the coordinator dated 13 October 2021, X told his side of the story. On 16 October 2021 the coordinator talked to Anna about the incident on 9 October 2021. The head of the department (fictitiously referred to as Dirk here) was also present. The municipality made a report of this conversation.
Subsequently, X had a conversation with Dirk and the lady from HR (fictitiously referred to as Esther here) as a result of the incident with Anna at the staff party on Monday 18 October 2021. During this conversation, an incident at a previous staff party (in 2018) with another colleague (fictitiously referred to here as Francine) was also discussed. Regarding the latter incident, X explained that he wanted to dance with Francine and put his arms around her to take her dancing. Francine did not appreciate this and walked away. Later on X apologized to Francine.
During the interview on 18 October 2021, X was suspended. As part of the investigation, Dirk and Esther also talked to Francine on 18 October 2021. On 20 October 2021, a follow-up interview took place with Anna. Also on that day, a conversation took place with the swimming team leader (fictitiously referred to as Gerrit here).
On 21 October 2021, a follow-up conversation took place with X. During this conversation, it was also mentioned that X had been spoken to by Gerrit in the summer of 2021 because of making jokes with sexual overtones towards colleagues.
In a letter dated 22 October 2021, the municipality confirmed the suspension and suspension to X, and announced that it intended to dismiss X with immediate effect.
X applied to the court to have the immediate dismissal by the Municipality set aside and for interim relief. The municipality submitted a written defence and made a counterclaim for (conditional) termination of the employment contract.
What did the parties argue in the proceedings?
According to X, there is no urgent reason for immediate dismissal. He argued that he had misjudged a situation, but that his behaviour towards Anna was not of sufficient weight to constitute an urgent reason for instant dismissal. He did not have the intention of 'forcing' himself on Anna in a sexual way, and this is also not evident from the facts as stated. His remark about 'rape' cannot be read as expressing an explicit sexual intention.
He intended to make a comparison, albeit far-fetched, between forcing extreme sexual content on an older professor by means of the subject of Anna's thesis, and rape. Nor do the alleged facts show that Anna felt unsafe or sexually harassed by him. He has had contact with Anna after the incident, he has apologised to her and Anna has accepted this. She has also not made a formal complaint to the Municipality. Anna does not want him to be fired either and feels deeply aggrieved that the municipality has taken this route. The incident took place at a party and not on the regular work floor. Anna herself started a conversation with him on an explicitly sexual subject. There have been no previous incidents or cross-border behaviour and he has not received a formal warning. X functions entirely satisfactorily and has even been put forward for a promotion. The relationship with his immediate colleagues, including his supervisor Gerrit, is excellent. The dismissal has very far-reaching consequences for X and the dismissal is in sharp contrast to the way in which his immediate colleagues see and value him. The facts are not of such a serious nature that, also in view of the case law, this justifies the serious consequences of instant dismissal.
The municipality put forward a defence and argued that there was a legally valid instant dismissal: there was an urgent reason, an immediate notice and communication of the reasons for the dismissal.
What does the subdistrict court rule?
To begin with, the subdistrict court dealt with the requirements for a legally valid summary dismissal. The subdistrict court stated that the burden of proof and the duty to prove the existence of an urgent reason lay with the employer.
The reason for the immediate dismissal given by the municipality in its letter of 22 October 2021 was X's transgressive behaviour at the staff party. Although this letter also referred to earlier incidents with Francine and about another colleague, it was not, or at least not sufficiently, clear that the municipality intended to use these incidents as a basis for the immediate dismissal. This is a requirement: an employee should know the reasons for dismissal straight away. During the hearing, the Municipality explained that by referring to these incidents it mainly wanted to demonstrate that it should have been clear to X that he should have changed his behaviour. However, the exact occurrences of these cited incidents are under discussion between the parties and the Municipality has not been able to (fully) substantiate its reading. For the aforementioned reasons, these incidents will not be included in the answer to the question of whether this is an urgent reason for instant dismissal.
It is an established fact that X made a remark about rape during the staff party and that he pinched Anna's buttocks that evening. He has stated this himself. However, X has explained at length that, in view of the circumstances under which this action took place, there were no bad intentions on his part and that his behaviour does not qualify as transgressive behaviour.
The Subdistrict Court stated: It is a fact of general knowledge that the issue of sexually excessive behaviour is particularly topical. However, each situation must be assessed on its own merits, taking into account all the specific circumstances. In this case, there was a working relationship, but the incident took place during a party and not at the office.
The colleagues, including X and Anna, were in a whatsapp group together and also socialised outside of work. The way they interacted is also evident from the dancing they did together, during which X 'lifted' Anna. They both enjoyed this and had fun together, as is evident from the statements and reports. This indicates that there was a casual atmosphere and that touching each other was not unusual. In this informal setting, Anna also brought up the subject of her thesis, a subject she knew to be controversial, as appears from the interview report. This interview report also shows that X had certain questions about this, including whether Anna had chosen this subject to shock her older professor. According to X these questions were reason to return to the subject later, after they had danced together. According to X, he drew a comparison between the themes of this conversation and a rape. According to Anna, he reacted to her remark that he was not strong enough to lift her up. In both cases, this comparison is inappropriate and it is bad that X claims to have wanted to make a joke, since it must be assumed that this is not a subject to make jokes about. Nevertheless, within the framework of these proceedings, the remark cannot be viewed separately from the context of the conversation and the rest of the evening.
It should have been clear to X from Anna's reaction, and it is clear from his statement that he understood this, that he had gone too far. By pinching her buttocks later that evening, X acts in a general sense inappropriately towards a colleague and also in a socially awkward way, given the circumstances. There is no evidence of any sexual content in this behaviour. Again, the consequences of his action cannot be seen separately from the atmosphere of the evening and the loose manners which are apparently common between these colleagues. Of course, loose manners do not mean that boundaries suddenly become blurred. However, the reaction of the employer towards X must be related to the context. The municipality has indicated that as an employer it is shocked by the report and that statements like those heard from X are absolutely unacceptable to it. In that context, it is considered that in such a case there can definitely be a need for action by the employer. However, an employer who wishes to maintain a higher moral standard than is evidently permitted in the workplace for a longer period of time, cannot do so towards a specific employee.
In short: according to the subdistrict court, although X's actions were culpable, under the given circumstances this was insufficient to justify the instant dismissal. It is impossible to see why the Municipality could not have imposed a different sanction under employment law. A summary dismissal was too severe a sanction in this specific case and was therefore annulled!
However, the employer's conditional request for dissolution is still on the table. The subdistrict court must therefore examine whether there is a reasonable ground for dismissal. The municipality has argued that the employee has acted or failed to act in such a way that the municipality cannot reasonably be expected to allow the employment contract to continue. The question arises: can X's colleagues still work with him in a responsible manner?
The municipality is not satisfied with this either: it argues that X's actions have caused his colleagues to experience no safe working environment, but according to the Subdistrict Court, this is not sufficiently evident from the documents. The recordings of the telephone conversations and the telephone messages do not give cause to assume this either. The Subdistrict Court therefore ordered the municipality to provide proof on this point. To be continued!
If you want to read the entire judgment, you can do so here: here.
Conclusion
This judgment underlines the fact that employers should be very careful when using the heavy tool of instant dismissal. This applies all the more if there is evidence of possible sexually transgressive behaviour. The Subdistrict Court made it clear that the context also plays an important role in this respect. Do you also have questions about dismissal (summary or otherwise) and/or the consequences of transgressive behaviour in the workplace? If so, then let the employment lawyers at SPEE advocaten & mediation assist you in good time!