Paralegal
Isabella Mahieu
GDPR, IT law, International Media Law
02 January 2020
Emilie van Kempen |
- Employment law
- Emilie van Kempen
I understand that you prefer to sit on your boyfriend's head
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Saying: "I understand that you prefer to sit on your boyfriend's head" reason to terminate an employment contract?
The employer has submitted a request to the court to terminate the employment contract with one of its MT members for culpable behaviour. He has often made inappropriate comments over a longer period of time, such as “Wees niet zo introvert, kut” ("Don't be so introverted, cunt") and that a colleague would have won a game of table tennis due to her cleavage. The MT member in question also, when an employee stated that she "did not like the current state of affairs", answered with "I understand that you prefer to sit on your boyfriend's head". Subsequently, a white spot on a colleague's clothing was joked in front of colleagues that “zij zich weer had laten onderspuiten” ("she had herself being sprayed again").
The relevant MT member had always been tackled about the comments. In his performance reviews it was also indicated that his communication style was not up to standard and coaching was offered, which the MT member rejected. Therefore, it was indicated that the employer could do nothing more than to terminate the employment contract after his last comment regarding sitting on the boyfriend’s head.
Corporate culture
However, the MT member in question did not agree with termination of his contract. The case has therefore been submitted to the court.
The corporate culture is said to be very informal and student-like, whereby making ambiguous, sexually oriented or otherwise flat-footed remarks regularly occurred. The relevant MT member even substantiated this with various WhatsApp messages during the court proceedings. His comments should be seen in that context. In addition, he submitted a statement from which it would follow that behaviour was not limited to between men and that hand pangs were the order of the day, especially during drinks and outings, without any consequences being attached to this by the organization.
He also indicated that the comments in the past had limited consequences and the comment "I understand that you prefer to sit on your boyfriend's head", although it was inappropriate, was not so inappropriate that it would justify termination of the contract immediately and without compensation.
Judgement
However, the judge is of the opinion that the employee, certainly as a MT member, should have known better and should have understood that his comments were taken very serious by the employer. He had been pointed out earlier that he had to pay attention to the way he communicated and that making such inappropriate comments was not acceptable. His actions can be qualified as sexual harassment, according to the judge. The judge finds this seriously culpable behaviour. A possible corporate culture does not change this.
The employment contract with the MT member has therefore been terminated by the judge. Without awarding any compensation. Not even the transition payment, since the termination of the employment contract is the result of serious culpable behaviour or negligence on the part of the employee.
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