No general rule for serious culpability

16 March 2023

In the judgment of 24 June 2022, the Supreme Court emphasizes the high threshold that applies to seriously culpable acts or omissions. Only in exceptional cases should an employee not be entitled to a transitional compensation, and the employer’s acts or omissions should also be taken into account in the assessment. There is therefore no room for a presumption of serious culpability, as argued by the A-G.

Facts and procedure

A teacher of physical education at a university of applied sciences was reprimanded in 2006 and 2010 for his teaching methods, which involved correcting the posture of mainly female students. Ultimately, a total ban on physical contact was imposed on him. After two further reports were received in 2017 about a slap on the buttocks and a massage lesson given by the lecturer to two female students, the University of Applied Sciences requested the termination of the employment contract due to the lecturer’s seriously culpable behavior. The subdistrict court upheld the termination, but ordered the university to pay transitional compensation. The University of Applied Sciences appealed against this decision, taking the view that the lecturer’s transgressive behavior qualified as seriously culpable conduct within the meaning of Section 7:673 sub 7, introductory words, and sub c of the Dutch Civil Code, and that the lecturer was not entitled to the transitional compensation on the basis of this exception. However, the Court of Appeal, and later the referring court, did not go along with this. The central question in cassation is whether, in the case of sexual transgression in a situation of dependency, the general rule should be that the conduct is to be classified as seriously culpable unless exceptional circumstances apply.

Conclusion of the A-G

In her conclusions, Advocate General (A-G) Wesseling van Gent argues in favor of this starting point twice, in the light of current social norms and the #metoo debate. She speaks of a “two-step approach”, where the first step is to establish whether the employee has engaged in sexually transgressive behavior. If this is the case and there is a situation of dependency, then serious culpability can be assumed. Subsequently, the court can of course still come to the conclusion, based on the circumstances presented, that there is no serious culpability, or that transitional compensation is nevertheless due pursuant to Section 7:673 sub 8 of the Dutch Civil Code.

Supreme Court ruling

The Supreme Court did not follow the A-G’s advice and upheld the high bar for serious culpability. The employee should only lose his right to transitional compensation in exceptional cases where it is clear that the employee’s acts or omissions should be considered not merely culpable but seriously culpable. In the Supreme Court’s view, a presumption such as that proposed by the A-G would not fit into this context and, moreover, would not do sufficient justice to an employer’s responsibility to prevent and, as far as possible, act against transgressive behavior.

Author: Hanna Steensma