When it gets too hot in the kitchen – sexually transgressive behaviour in the hospitality industry

Sexually transgressive behaviour in the workplace has been a hot topic since the rise of #MeToo, and certainly in the hospitality industry where work and personal life easily merge. While employers disapprove of sexually transgressive behaviour – and rightly so – they often struggle to decide on a proper response to reports of such behaviour. But what should employers do when they are faced with instances of sexually transgressive behaviour?

Summary dismissal
Recently, the Utrecht District Court heard a case involving sexually transgressive behaviour at a catering and hospitality establishment. The employee in question was responsible for operational, commercial and financial matters. Both a service manual and the Employee Handbook prohibited alcohol consumption during working hours and ‘improper conduct’.

The employee had made comments of a sexual nature to colleagues, including during a tasting. After a subsequent report of transgressive behaviour, he was placed on leave of absence and then summarily dismissed.

The employee did not contest the dismissal but did ask the sub-district court to order the hospitality establishment to pay him the transition payment, substantial fair compensation and other sums.

Informal corporate culture and policy?
The Dutch Working Conditions Act stipulates that preventing sexual harassment has to be part of the employer’s working conditions policy. This means that an employer must identify all business risks and take appropriate measures to ensure that every employee (i) can work safely, (ii) feels safe at work, and (iii) can report any and every form of transgressive behaviour. If the employer fails to do so, it may be held liable for the loss and damage an employee suffers as a result. A culture of harassment may also bring about a negative working atmosphere, fear among employees, high absenteeism, high staff turnover and lower productivity.

In this matter, the sub-district court found that corporate culture in general does not justify employers condoning behaviour that ‘should be considered transgressive according to objective criteria’. This means that even a somewhat more ‘informal’ corporate culture is not a reason to permit transgressive behaviour.

In general, however, policies do depend on enforcement: punishing improper conduct, facilitating conversations about safety and creating an atmosphere in which people dare to call each other to account for their behaviour.

Information

Employers must therefore draft and also enforce clear and knowable policy to ensure that employees know what behaviour will and will not be tolerated. ‘Clear’ means that the policy is written in plain language. ‘Knowable’ means that employees are given the opportunity to take note of the policy, for example because the employer has sent it to them or has stated where the policy can be found on the intranet. Keeping employees well informed about the policy is clearly of paramount importance. They must be informed not just once, but regularly.

Here, the sub-district court found that the employee was well aware of what was and was not permissible. He had even been involved in drafting the policy. This hospitality establishment had made the policy knowable through a service manual and the Employee Handbook, but knowability can also be achieved at individual level: a past warning about an employee’s behaviour may result in a new, relatively minor violation being severely punished.

The employee’s position
In this case, the sub-district court held that the employee had to be extra aware of the position of the employees who depended on him. And precisely because work and private life easily merge in the hospitality and leisure industry, it was up to the employee to set a good example and guard against transgressive behaviour.

In short, the position of the employee doing the sexual harassment mattered: as he was a manager and the other employees depended on him, he was to blame for the behaviour even more.

Complaints procedure
It also needs to be clear who to file a complaint with, and any suspected wrongdoing must be thoroughly and expeditiously investigated. Engaging an outside agency will prevent the employer from being accused of bias.

It also follows from this judgment that careful and independent investigation is important, but that an employer can have that investigation conducted internally. Experience shows that safeguarding the privacy of those involved proves to be a challenge in that respect. This is crucial, however, because if an investigation concludes that no sexually transgressive behaviour took place, all persons concerned have to be able to resume working.

It goes without saying that, if a procedure is prescribed, then the employer must strictly adhere to it. If it doesn’t, it will not get off lightly in court.

How did it end?
The sub-district court found the employee’s conduct intimidating, offensive, humiliating and sexually transgressive. It denied the employee’s request for the award of a transition payment and fair compensation.

In short, the employee was rightly summarily dismissed and did not receive any compensation whatsoever.

Read this blog in Dutch here.