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The new act “Addressing Sexual Offences” and sexual transgressive behaviour at the workplace  

As of 1 July 2024, a new criminal act “Addressing Sexual Offences” (Wet Aanpak Seksuele Misdrijven) will come into force in The Netherlands. The act aims to protect victims of sexual violence and sexually transgressive behaviour in a better way.  The question rises, how does this new law relate to addressing transgressive behaviour in the workplace?

Act “Addressing Sexual Offences

With the new Act, victims of sexual violence and sexually transgressive behaviour will be given better protection. From then on, victims can report more cases of sexually transgressive behaviour. For instance, the law makes sexual harassment in public punishable, both offline and online. This therefore covers situations on the street, but also via social media. In addition, the law makes sexual acts within a functional dependency relationship (such as between a supervisor and employee subordinate) punishable under circumstances. The legislator is of the opinion that in such a relationship, in principle, the subordinate lacks the (‘real’) will and consent. It is then up to the superior to prove that there was mutual consent.

Addressing transgressive behaviour at the workplace

Employers bear the duty of care and thus have a responsibility to ensure a safe working environment for their employees. A safe working environment is free from sexual harassment and transgressive behaviour. Employers therefore have the responsibility to prevent transgressive behaviour within the organisation as much as possible and, when signals of such behaviour are received, to take action against it.

Under the Working Conditions Act, it is mandatory to identify and prevent various risks, including the risks of sexual harassment in the workplace.

To prevent sexual harassment and sexually transgressive behaviour in the workplace, it is important to have clear guidelines within the organisation and to communicate them internally. It is recommended to clearly explain what the employer specifically defines as unacceptable, unsafe and inappropriate behaviour. In view of the new (criminal) Act, it is advisable to also make employees aware of the criminal risks involved in sexual actions within a functional dependency relationship. In addition, it should be clear where employees can make a report of sexually transgressive behaviour and how this report will be handled.  Employees should be aware of the sanctions that can be imposed. All this information should be available and easy for employees to find. For example, by clearly placing the code of conduct, the complaints procedure and the contact details of the confidential advisor on the intranet. Employees should be made aware of where to find these documents.

Whether an employer has fulfilled its duty of care will depend both on its policies to prevent sexually transgressive behaviour in the workplace, and on the enforcement of those policies. If an employer does not comply with its duty of care, this may result in the employer being liable for the damages a victim suffers because of sexual transgressive behaviour in the workplace. If an employer did do everything possible to prevent sexually transgressive behaviour in the workplace, this may result in the court ruling that an employee who sexually harassed another employee acted in a seriously culpable manner and therefore no transitional compensation will be awarded to him or her.

Employers beware

To recap, with the enforcement of the new law ‘Addressing Sexual Offences’ starting 1 July 2024, there will be more attention and criminal recognition for victims of various forms of sexually transgressive behaviour. This will impact on the workplace as the new law includes a focus on functionally dependent relationships. For employers, the introduction of this law means that, as part of their duty of care, they must pay extra attention to preventing and addressing sexually transgressive behaviour in the workplace.

Bronsgeest Deur Advocaten will be happy to support your organisation in preventing, addressing and resolving issues surrounding sexually transgressive behaviour in the workplace. For advice and guidance, please contact one of our lawyers.

Helene Pruymboom

Published On: 17 June 2024

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