Addressing sexual transgressive behaviour – company culture essential

Over a year ago, the government commissioner on sexual transgression and sexual violence published guidelines against sexual transgression that focuses on culture change in the workplace (see this link).

The need to focus on culture change with the goal of adequately addressing sexually transgressive behaviour in the workplace is also evident from a recent ruling by the Amsterdam Court on 13 February 2025. In this case, an overly permissive company culture led to an employment contract not being dissolved by the court, even though it had been established that the employee had frequently made explicitly sexual and woman-unfriendly remarks and held an exemplary position.

Facts
What happened in this case? The employee had been employed by KLM as a Purser since 1996; in this position he managed the cabin crew. In 2024, the employee was informally addressed about his sexually oriented remarks. Moreover, one of the Cabin Attendants discussed the employee’s behaviour with her supervisor. As a result, KLM had its internal security department investigate the employee’s behaviour

As part of this investigation, six crew members gave statements and the employee was also heard. KLM concluded on the basis of this investigation that several incidents occurred during a flight: sexual and sexist expressions and behaviours toward various (subordinate) colleagues and racist and discriminatory expressions toward Jewish/Israeli passengers/population. KLM informed the employee that he had lost the trust of the organization and requested the court to dissolve the employment contract on the basis of culpable conduct, a disturbed employment relationship or a combination of both.

Since the statements regarding the racist and discriminatory expressions toward the Jewish/Israeli passengers/population were not consistent with each other and employee has sufficiently disputed these accusations, the court did not include this accusation in its assessment of the dissolution request.

The sexual and woman-unfriendly remarks, on the other hand, have been sufficiently established, because several members of the cabin crew have independently given detailed examples of this behaviour and the captain has also stated about this (who had no personal interest in the situation). The court considered that the aforementioned examples left little to the imagination and KLM rightly argued that the employee had thereby behaved in an unacceptable manner. The fact that the employee, as a Purser, had a role model function and in his role was supervising much younger and less experienced Cabin Attendants plays a role in this. During a shift, there is prolonged intensive collaboration in a small space. In that setting, the employee should have been aware of the impact his comments would have on the working atmosphere and sense of safety on board. He should have understood that his explicitly sexual and sexist remarks – even though they may have been intended as a joke – seriously affected this. The court therefore considered that KLM was right not to tolerate this behaviour.

No dissolution of the employment contract
Nevertheless, the court ruled that the employee’s behaviour was insufficient for dissolution of the employment contract based on culpable conduct. There are two reasons for this: 1) the employee was not warned earlier and 2) the company culture.

1) not warned before
The employee was employed by KLM for a long time and always received positive reviews. This while he did not behave differently during flights in previous years. It is also established that the employee had already modified his behaviour after being informally addressed about it.

2) corporate culture
KLM has argued that it could not be required to enter into a discussion with the employee about his behaviour, because it must have been clear to the employee on the basis of the information in the personnel portal, messages in the internal news app and the collective labour agreement that his behaviour was unacceptable. The court rejected this argument, because in practice there was a free, casual atmosphere, within which jokes were frequently made back and forth, including about sex. This is also supported by some statements from the cabin crew.

The court considered that it is conceivable (to a certain extent) that within such a culture the boundaries of what is permissible for an employee may become blurred. There is then a greater role for the employer to make clear what is acceptable and what is not. Referring to general information such as in a personnel portal is then insufficient.

In view of the above reasons, according to the court, KLM could be expected, before it would seek termination of employment, to first enter into a discussion with the employee and give him an official warning. Apart from the informal moment, this did not happen. For that reason, the court rejected the request for dissolution based on culpable conduct.

The request for dissolution was also unsuccessful on the grounds of a disturbed employment relationship (or a combination thereof with culpable conduct). According to the court, there was no permanently disturbed employment relationship, because the employee was willing to change his behaviour and was open to guidance. It was also easy to realize within KLM’s system to no longer schedule him with colleagues of the flight cycle in question.

The court granted the employee’s request to be allowed back to work. The court did note that the employee could be expected to show a clear change in his behaviour and that he would grasp KLM’s guidance with both hands.

In short, attention to the company culture is essential for addressing and preventing sexually transgressive behaviour. If you would like to learn more about this topic or have a similar situation going on, please contact one of our lawyers.