Conduct of a University lecturer: creative or transgressive? Checklist!
Since the rise of #metoo, transgressive behaviour in the workplace has been a hot topic involving a discussion of the entire spectrum of employers – from sports clubs to politics and from television to education.
Although public outcry is often great, courts do not readily assume the existence of serious culpability, especially if the employer does not have a specific and knowable policy. The employee will still receive a transition payment.
The basic principle is: ‘A transition payment must be paid, unless…’ This was also what the Amsterdam University of Applied Sciences (the “University“) experienced in a recent case before the Amsterdam sub-district court.
A BOOS broadcast gave rise to six complaints about a University lecturer
After the BOOS broadcast about transgressive behaviour surrounding The Voice, the University received six complaints about a lecturer who also coached students and was responsible for their grading.
The University suspended the lecturer and commissioned an external investigation.
The investigation results revealed an informal working atmosphere and a lack of a clear, concrete assessment framework for transgressive behaviour
The lecturer had a sexual relationship with a student, but it was unclear how voluntary the relationship was. He asked other students to send him photographs in gala dress or to go swimming with him, sending along a photograph of himself in swimming trunks. In 2021, he also received a written warning for consuming alcohol in class.
The lecturer described himself as an ‘intense person’ – a creative type with eccentricities who sometimes walked barefoot, informally communicated with students and hugged students and colleagues.
Although the University applied internal rules and a code of conduct, these did not provide a clear, concrete assessment framework for the type of behaviour the University considered transgressive. The University had also appointed persons of trust and established a complaints committee.
The University wanted the lecturer to leave; the lecturer wanted to stay or receive substantial compensation
The University sought rescission of the employment contract and adopted a multi-pronged approach: culpable act (ground e), disrupted employment relationship (ground g), other circumstances (ground h) and the cumulation ground (ground i).
The lecturer wanted to stay and, if dismissal did follow, requested the award of fair compensation and compensation for loss of pension in addition to the transition payment.
The sub-district court: the lecturer’s behaviour was transgressive
The sub-district court held that the lecturer’s teaching and coaching style differed from what was customary in the university programme. Interaction between lecturers and students was informal and took place on more or less equal terms, with lecturers participating in social activities outside of classes, such as induction days on the island of Texel and the final gala.
The sub-district court found that the lecturer’s behaviour was transgressive; he was seriously to blame for the sexual relationship and his failure to report it. The gala dress and swimming invitation incidents were equally inappropriate. The lecturer had not adequately considered his position of power as a lecturer and assessor.
But… did the University fulfil its obligations?
At the same time, the sub-district court ruled that apart from the alcohol incident, the University had never called the lecturer to account for undesirable behaviour, despite his deviant coaching style and despite the appointment of persons of trust and the establishment of a complaints committee. In his own words, he changed from ‘hero to zero’ in a short time, which had a great impact on him. In line with the investigation report, the sub-district court found that a more concrete assessment framework was needed that should define what conduct the University considered to be transgressive.
Did the sub-district court follow the rule of ‘A transition payment must be paid, unless…’?
The sub-district court rescinded the employment contract on the ground of a disrupted employment relationship. Integrity, reliability and credibility are core competencies of lecturers. The relationship of authority and dependence between a lecturer and a student implies that lecturers have to lead by example. The University was not required to employ or reassign a lecturer if it feared that doing so would affect the pedagogical climate and/or student confidence in the school.
Although dismissal followed, the sub-district court ruled that neither party was seriously culpable, whilst the University was to blame for the lack of a sufficiently concrete assessment framework. Therefore, the lecturer received only the transition payment.
Checklist for employers for possible transgressive behaviour
- Take measures to guarantee a sound and safe working environment.
- Call employees to account for their behaviour.
- Provide clear and knowable rules of conduct and a proper complaints procedure.
- Ensure that a proper investigation is conducted by internal or external parties.
- Hear both sides of the argument.
- And, if facts are known: consider whether dismissal is justified/opportune and how the employee should be dismissed: by means of an agreement determining the legal relationship between parties, termination of the employment contract or summary dismissal.
