What can you do about inappropriate sexual behavior at work?

You address sexual misconduct at work through a combination of prevention and enforcement: map out the risks in your Risk Inventory and Evaluation (RI&E), establish what is and is not acceptable in a clear policy and personnel regulations, make reporting accessible via a confidential counsellor and complaints procedure, and enforce consistently with appropriate sanctions. The Working Conditions Act obliges you as an employer to implement a policy against psychosocial stress at work (PSA), which includes sexual harassment. Anyone who merely puts prevention on paper but allows transgressive behavior to continue in practice is in a weak legal position if things go wrong.

In short: here is how to tackle it

Short on time? This is the core of an approach that holds up legally:

1. Identify the risks of unwanted behavior in your RI&E.
2. Establish clear policies with concrete rules of conduct and a sanctions ladder in your employee handbook.
3. Make reporting accessible through a confidential counsellor and a complaints procedure.
4. Enforce consistently, so that your actions during an incident stand up in court.

What is inappropriate sexual behavior at work?

Transgressive sexual behavior, also known as sexual harassment, encompasses much more than unwanted physical contact. It concerns any form of unwanted sexually suggestive attention or advances that an employee experiences as hurtful, humiliating, or intimidating. It is important to remember: it is about the recipient's experience, not the other person's intention.

The four forms you encounter in practice

• Physical harassment – ​​unwanted touching, a hand on the shoulder or buttocks, standing in the way.
• Verbal harassment – ​​sexually suggestive remarks, jokes, questions about someone's private life, or constant compliments about their appearance.
• Non-verbal harassment – ​​staring, gesturing, or showing sexually suggestive imagery.
• Digital harassment – ​​unwanted messages or images via WhatsApp, email, or social media, including in group chats after working hours.

Intimidation does not have to be limited to interactions between colleagues. An employee may also face inappropriate behavior in their relationship with customers, suppliers, or visitors. As an employer, you have a duty of care in that regard as well.

What obligations do you have as an employer under the Working Conditions Act?

The Working Conditions Act classifies sexual harassment as psychosocial work load (PSA). You are legally obliged to implement policies that prevent and limit this load as much as possible. In concrete terms, this usually means:

• Mapping the risks of unwanted behavior in your Risk Inventory and Evaluation (RI&E).
• Based on this, draw up an action plan and policy against sexual harassment.
• Provide shelter and a place where employees can go, and a complaints procedure to handle reports.
• Educating employees about what unwanted behavior is and how they can report it.

Please note that the rules regarding confidential counsellors are in flux. There is a legislative proposal that would make the appointment of a confidential counsellor legally mandatory for employers with ten or more employees. That proposal has been passed by the House of Representatives but is still awaiting consideration by the Senate; therefore, at the time of writing, it has not yet entered into force and the exact effective date is unknown. Many employers already appoint a confidential counsellor, as this is both practically sound and aligns with the existing duty of care for a safe working environment.

Step 1: Identify the risks in your RI&E

Everything starts with insight into the risks. Map out in your RI&E where and how sexual harassment can occur within your organization. Consider not only relationships between employees, but also situations with customers and suppliers, working alone, evening and night shifts, and a company culture where crude jokes are considered normal.

This inventory is not a formality: it forms the basis for further policy. Those who seriously identify the risks can also take targeted measures to address them.

Step 2: Develop a clear policy and action plan

Translate the findings of your RI&E into concrete, enforceable policy. It is important that you do this in consultation with the Works Council or employee representation, if applicable.

To make the policy enforceable, include clear rules of conduct in your internal documents, such as the employee handbook and terms of employment. This includes:

• Clear boundaries. Make it concrete for everyone what constitutes inappropriate behavior, so there is no room for “that was just a joke”.
• Attention to all forms. Explicitly mention digital, verbal, and non-verbal harassment, including behavior in WhatsApp groups.
• A sanctions ladder. Link consequences to violations, ranging from an official warning to suspension or, in serious cases, immediate dismissal.

By documenting the rules and sanctions in writing, you are in a stronger position if you actually have to take action later.

Step 3: Build a safe reporting and corporate culture

Paper policies only have value if employees feel safe enough to file a report. Therefore, ensure that both victims and witnesses know where to turn and lower the threshold.

• Appoint a confidential counsellor and clearly communicate who that is and what that role entails.
• Make reporting easy or, if necessary, anonymous.
• Also refer to independent parties, such as the company doctor or an external complaints committee.
• Lead by example: a safe culture starts at the top.

Step 4: Enforce consistently in cases of transgressive behavior

Prevention alone is not enough. You are also obliged to ensure compliance with your agreements. Therefore, instruct managers to take unwanted behavior seriously and to actually apply the sanctions ladder in the event of violations.

The importance of this is evident from case law. In an illustrative case, a young female employee filed a complaint against a colleague for inappropriate behavior after drinks. The employee was summarily dismissed. Although the judge ruled that the behavior, such as placing a hand on the buttocks, went beyond innocent flirting and was unacceptable, the judge did rule that the behavior went beyond innocent flirting and was not permissible.

However, the summary dismissal did not stand. The employee was able to demonstrate that casual, sexually suggestive behavior was tolerated within the company – including in a WhatsApp group in which managers and even the confidential counsellor actively participated – without the employer intervening.

The message is clear: an employer who condones transgressive behavior for years cannot simply impose the harshest sanction as soon as things get out of hand. The dismissal was deemed invalid, resulting in obligations regarding wages and compensation. Consistent enforcement is therefore not a minor detail, but determines whether your actions hold up legally.

What do you do immediately after a report?

When a concrete report is received, how you take the first steps is what matters most. A careful and confidential process protects both the whistleblower and your legal position. Follow this sequence:

1. Take the report seriously and ensure the person making the report receives support and care.
2. Handle the matter confidentially and follow your own complaints procedure.
3. Investigate the facts carefully and objectively, and record what you determine.
4. Apply the principle of hearing both sides before taking action against the accused.
5. Weigh the sanction against the severity, the context, and the corporate culture.

Are you unsure whether a severe measure such as a dismissal will stand up in court? Then have the situation reviewed before you act. A poorly structured dismissal can cost you dearly.

The consequences if you do nothing

Ignoring or letting transgressive behavior slide can cost you dearly as an employer:

• Legal risks. The Dutch Labour Inspectorate can enforce regulations and hold you accountable for inadequate psychosocial risk assessment (PSA) policy.
• Liability. In the event of a breach of your duty of care, you may be liable for damages suffered by an employee.
• Weaker position in the event of dismissal. Those who condone the behavior themselves find it difficult to obtain summary dismissal, as case law shows.
• Absenteeism and attrition. An unsafe culture leads to sickness absence, turnover, and reputational damage.

Frequently Asked Questions

Is a confidential advisor mandatory for my company?

A separate law mandating the appointment of a confidential counsellor for employers with ten or more employees has been passed by the House of Representatives, but is currently pending in the Senate and is not yet in effect. However, the existing duty of care under the Working Conditions Act implies that employees must have a place to turn with reports. Appointing a confidential counsellor is therefore advisable in any case.

Does a remark or joke also constitute sexual harassment?

Yes. Sexual harassment is not limited to physical contact. Verbal remarks, jokes, staring, or unwanted digital messages can also fall under it. The determining factor is whether the recipient perceives it as unwanted and hurtful.

Am I allowed to summarily dismiss an employee for inappropriate behavior?

This is possible in serious cases, but it is a severe measure subject to strict requirements. A judge also considers the broader corporate culture. If you have previously condoned similar behavior, the dismissal may not stand. Therefore, always have a summary dismissal legally reviewed.

What do I do immediately after a report of inappropriate behavior?

Take the report seriously, provide support to the person making the report, handle the matter confidentially, and follow your complaints procedure. Investigate the facts thoroughly, and before taking any action against the accused: apply the principle of hearing both sides and weigh the sanction against the severity and context.

Does my duty of care also apply to the behavior of customers or suppliers?

Yes. Your duty of care for a safe working environment is not limited to behavior between colleagues. If your employee is harassed by a customer, supplier, or visitor, you are expected to take appropriate measures, for example by protecting the employee, addressing the collaboration, or, in extreme cases, terminating it.

Do I need to report this to an agency?

For an individual report, there is generally no obligation to make an external report. However, the Dutch Labour Inspectorate can check whether your policy regarding psychosocial stress at work is in order, and an employee can approach the inspectorate themselves. Therefore, ensure that your internal process and records are in order. Are you unsure about your obligations in a specific case? Then seek legal assistance in a timely manner.

Let MKB Juristen help you with a safe workplace

A safe working environment starts with sound agreements that hold up legally. MKB Juristen helps you with enforceable policies, from a solid employee handbook to an appropriate official warning or dismissal letter when a line is truly crossed. This way, you meet your obligations and stand strong when it matters.

Do you want to know if your policy is in order, or are you dealing with a specific situation? Our employment will think along with you. Schedule a no-obligation intake consultation and discuss your situation with a specialist.