22 November 2023

Small hearts, big consequences

By Amber Willemsen

Since the MeToo movement in 2017, the number of court rulings involving sexually transgressive behaviour has increased exponentially.

What constitutes sexual transgression and what sanctions are appropriate? Is sending heart emojis to a colleague sexually transgressive behaviour? And if so, is dismissal an appropriate sanction? This question was referred to the courts in late 2022.

Complaints

The employer in the lawsuit in question was a well-known, nationwide clothing store chain and the employee was the store manager of the Amsterdam branch. The store manager is the most senior manager of the Amsterdam branch. At a certain point, this manager sent four heart emojis to his younger, subordinate colleague via WhatsApp. This colleague filed a complaint in response.

Investigation

Because of this complaint and earlier complaints received from other colleagues about the manager, the employer launched an investigation. This reportedly showed that the manager had displayed sexually transgressive behaviour. Accordingly, the employer asked the court to terminate the employment contract.

Dress

Although several complaints had been received about this manager, the court only found evidence that the manager had sent heart emojis to his subordinate colleague via WhatsApp. He did this in response to a holiday photo of the colleague, in which she was wearing a short dress. The court did not qualify the sending of this message in this case as sexually transgressive behaviour and therefore upheld the employment contract.

Awkward

The court further ruled that while it is understandable that such a message is awkward for a subordinate, young female colleague, this does not mean that the manager meant his messages to be sexual or flirtatious. After all, hearts are used in communications – apart from showing love – to indicate that something is nice.

The fact that the manager was permitted to retain his job in this case does not mean that sending heart emojis is permissible in every situation. What is more, the court noted that a manager could be expected to understand that such a message could make the recipient feel uncomfortable, and should refrain from doing so in future.

Conspiracy

That the conduct in this case did not lead to dismissal was partly because the manager had sent the message several years previously. The court also saw strong evidence that the other complaints stemmed from a conspiracy between the complaining employees against the manager. They were said to be outraged by a reorganisation that was advantageous for the manager. Moreover, it was not sufficiently established that the other complaints were justified.

Amsterdam District Court 19 December 2022, ECLI (abridged):7677

Evidence and witnesses

Complaints about a colleague’s transgressive behaviour often consist of one or more statements from victims and witnesses. It is important that an organisation handles such complaints carefully, both for the victim and the accused.

Listen to those involved

Ideally, there should be a code of conduct in place within the organisation, as well as a clear complaints procedure. Both the victim and the accused should be given the opportunity to give their respective accounts. It is important that the complaint is investigated as soon as possible so that prompt and appropriate action can be taken. For example, in the above ruling, the complainants, the accused and other witnesses were not heard by the court until the hearing. It is also possible – and advisable – for an employer to listen to those involved and have them sign a written statement.

Early stage

The sooner statements are made after an incident, the more reliable the statements will be. The court can then determine whether it is still necessary to hear the witnesses during the hearing. GMW lawyers can advise you at an early stage on what steps to take.

More information

Do you have a legal questions or would you like more information?Please do not hesitate to contact us.

Amber Willemsen

Amber Willemsen

Lawyer

Amber Willemsen is a lawyer within the Employment law section.

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