ഒരു സഹപ്രവർത്തകനുമായി ഡേറ്റിംഗ്: ഡച്ച് തൊഴിൽ നിയമപ്രകാരം എന്താണ് അനുവദനീയം?

Dutch law does not prohibit a relationship between colleagues, and an employer cannot simply ban one. The right to respect for private life is protected by Article 8 of the European Convention on Human Rights and by Article 10 of the Dutch Constitution. Article 7:660 of the Civil Code gives the employer the power to issue instructions, but that power covers the performance of the work and the good order of the business, not the private lives of the people doing it. A blanket ban on workplace relationships is therefore very difficult to defend.

What an employer may do is narrower and more specific. It may require disclosure where a relationship creates a conflict of interest — most obviously where one partner reports to the other, assesses their performance or decides on their pay. It may reassign one of the two to remove that conflict, provided the change itself is reasonable. And it may act firmly against conduct that affects others, because the Working Conditions Act (Arbeidsomstandighedenwet) obliges an employer to prevent undesirable behaviour at work. A relationship that has ended badly can turn into exactly that.

Dismissal because of a relationship alone will rarely hold. It requires one of the statutory grounds in Article 7:669 of the Civil Code, and a court will look for something beyond the relationship itself: a genuine conflict of interest that could not be solved in another way, a breach of a clearly communicated and proportionate policy, or conduct that damaged the working environment.

Is dating a colleague allowed under Dutch law?

Yes. No Dutch statute forbids a relationship between colleagues, and the right to a private life limits how far an employer can interfere. The employer may, however, set reasonable rules where a relationship affects the work, in particular where there is a conflict of interest or a difference in position.

Which rules apply to relationships at work?

Several sets of rules meet here. Article 8 of the European Convention on Human Rights and Article 10 of the Constitution protect your private life. Article 7:660 of the Civil Code allows the employer to give instructions about the work and about the order in the business. Article 7:611 of the Civil Code requires both the employer and the employee to act as a good employer and a good employee. Together, these rules mean that an employer must have a legitimate reason for any rule that touches your private life, and that the rule must be proportionate to that reason.

The Working Conditions Act adds a duty for the employer. Under Article 3(2) of that Act, the employer must pursue a policy aimed at preventing, or where that is not possible limiting, psychosocial workload (psychosociale arbeidsbelasting). The Act defines that term to include undesirable behaviour such as sexual harassment, aggression, violence and bullying. In addition, Article 7:658 of the Civil Code makes the employer responsible for a safe working environment. Equal treatment legislation also prohibits sexual harassment at work.

The result is a clear division. A consensual relationship between two adults is their own business. Behaviour that makes others feel unsafe, or that undermines fair decisions about colleagues, is the employer’s business.

Do you have to tell your employer?

The law contains no general duty to report a relationship. A duty to disclose can follow from a company code of conduct or integrity policy, and from the general duty to act as a good employee, especially where you supervise or assess your partner.

Many organisations ask employees to disclose a relationship when one partner has influence over the other’s work, pay or career. The purpose is not to judge the relationship but to allow the employer to take simple measures, such as moving a reporting line or having someone else carry out an assessment. Where both partners work at the same level in different teams, an employer usually has little reason to ask for any information at all.

If you do disclose, the employer may only use that information for the purpose for which it was given. Under the General Data Protection Regulation (GDPR, in Dutch AVG), the employer must limit the data to what is necessary, keep it confidential and restrict access to the people who need it (Article 5 GDPR).

What legal risks does a workplace relationship carry?

The main risks are a conflict of interest, a claim of favouritism and, when things go wrong, a complaint of harassment. None of these follows automatically from the relationship itself, but each can arise from how the relationship is handled.

For the employer, the risk lies in unfair decisions and in failing to protect other employees. A colleague who is passed over for promotion in favour of a manager’s partner may challenge the decision. An employee who feels pressured by a former partner in a senior role may hold the employer responsible if it did nothing after a complaint.

For employees, the risk lies in crossing the line from a relationship into unwanted behaviour. Consent is not a one-off matter: attention that was welcome during the relationship can become unwanted once it is over. Unwanted sexual advances, pressure or retaliation at work can lead to disciplinary measures and, in serious cases, to dismissal.

What may a company policy permit and restrict?

A company policy may regulate the effects of a relationship on the work, not the relationship itself. Rules that are clear, proportionate and applied in the same way to everyone stand the best chance in court.

What does a workable relationship policy contain?

A workable policy usually covers four points. It states when disclosure is required, typically only where there is a hierarchical relationship or a real conflict of interest. It names a confidential point of contact, such as HR or a compliance officer. It describes the measures the employer may take, such as changing a reporting line. And it explains what happens when someone does not comply.

The policy should also refer to the general rules on conduct and to the complaints procedure for undesirable behaviour. A policy that only lists prohibitions, without explaining why they exist and how they will be applied, is harder to enforce.

Where the business has a works council (ondernemingsraad), its consent may be required. Under Article 27(1) of the Works Councils Act (WOR), the works council has a right of consent for, among other things, rules on working conditions, rules on handling complaints and rules on processing and protecting personal data of employees. A relationship policy often touches one or more of these subjects.

Why do reporting lines matter so much?

Where one partner manages the other, the risk of a conflict of interest is real, and an employer may then require disclosure and take measures. That is the situation in which a policy has the strongest justification.

A manager who assesses a partner, sets their pay or decides on their promotion cannot do so objectively in the eyes of colleagues. Even if every decision is fair, the appearance of favouritism can damage trust within a team. The usual remedy is to move the assessment or the reporting line to another manager. A transfer to another team is possible too, but the change must be reasonable, and the employer should first consider less drastic measures.

Policies often ask employees in such situations to:

• disclose the relationship to HR or to a designated contact;
• refrain from taking decisions about the partner’s pay, assessment or promotion;
• behave professionally at work and avoid displays of affection that make colleagues uncomfortable;
• cooperate with reasonable measures to remove a conflict of interest.

What can an employer do if the policy is breached?

The employer may respond, but the measure must fit the breach. A conversation or a written warning is usually the first step; dismissal is only realistic where the breach is serious or repeated.

Possible measures range from a conversation and a warning to a change of role or reporting line. Whether a measure is acceptable depends on the circumstances: how clear the rule was, whether the employee knew it, what harm was done and how the employee responded. The duty to act as a good employer (Article 7:611 of the Civil Code) also requires the employer to hear the employee before deciding.

Courts look closely at proportionality. In a case before the District Court of Amsterdam (14 July 2020, ECLI:NL:RBAMS:2020:3452), a manager had not disclosed an earlier relationship with a subordinate colleague. The court held that he should have reported it, but that this circumstance on its own was no ground to end the employment contract: the relationship had ended years before and no harm had been shown. The court did dissolve the contract because the working relationship had broken down, but it held the employer responsible for that breakdown, partly because it had searched the employee’s e-mail without good reason. It awarded fair compensation (billijke vergoeding) on top of the transition payment (transitievergoeding).

The table below gives a general picture of how employers often deal with typical situations. It describes common practice, not legal requirements.

ഒരു ജീവനക്കാരൻ എന്ന നിലയിൽ നിങ്ങൾ എന്താണ് പരിശോധിക്കേണ്ടത്?

As an employee you must act as a good employee under Article 7:611 of the Civil Code. In practice that comes down to these checks:

• Read the code of conduct or integrity policy to see whether disclosure is required, and to whom.
• If you manage or assess your partner, report the conflict of interest before the next decision on pay, assessment or promotion.
• Take no part in decisions about your partner’s pay, schedule, assessment or promotion.
• Never use work systems such as time registration, camera images or personnel files for personal purposes; that led to dissolution in ECLI:NL:RBROT:2020:9434.
• After a break-up, report unwanted behaviour early to the confidential adviser (vertrouwenspersoon), HR or the complaints procedure.

ഒരു തൊഴിലുടമ എന്ന നിലയിൽ നിങ്ങൾ എന്താണ് പരിശോധിക്കേണ്ടത്?

As an employer you must protect all staff against undesirable behaviour under Article 3(2) of the Working Conditions Act, and apply your rules consistently. Check the following:

• Limit any disclosure rule to a hierarchical link or a real conflict of interest.
• Check whether the policy needs the works council’s consent under Article 27(1) WOR.
• Explain the policy when you introduce it and in onboarding, and apply it equally to everyone.
• Store disclosed information confidentially and only to the extent necessary (Article 5 GDPR).
• Hear the employee before any measure and choose the lightest measure that removes the conflict.
• Do not search an employee’s mailbox without good reason; in ECLI:NL:RBAMS:2020:3452 that contributed to an award of fair compensation.

Can a relationship lead to dismissal?

A relationship on its own is not a ground for dismissal. Dismissal is only possible on one of the grounds in Article 7:669 of the Civil Code, or, in the case of an urgent reason, through summary dismissal (ontslag op staande voet) under Article 7:678 of the Civil Code.

In practice, two grounds come up most often. The first is culpable conduct of the employee (Article 7:669(3)(e) of the Civil Code), for example where an employee breaches a clear rule or misuses their position. The second is a seriously and permanently disrupted working relationship (Article 7:669(3)(g) of the Civil Code). In both cases, the employer must also show that reassignment to another suitable position is not possible or not reasonable.

The case of the District Court of Rotterdam (13 July 2020, ECLI:NL:RBROT:2020:9434) shows where the line lies. After a relationship with a colleague ended, an employee used information from the time registration and camera systems, to which she had access through her job, to make remarks to her former partner and another colleague. The court dissolved the employment contract for culpable conduct. Because the conduct was not considered seriously culpable, the employee kept her right to the transition payment. The employer would only have been able to withhold that payment if the conduct had been seriously culpable.

How do you handle a relationship at work in practice?

Check the company policy, be open where there is a conflict of interest and keep work and private life apart. If the relationship ends, agree on how you will work together and report unwanted behaviour early.

How do you disclose a relationship?

Start by reading the company policy or code of conduct, so that you know whether disclosure is required and to whom. Where it is required, disclose early and keep it brief.

A disclosure usually includes:

• the fact that there is a relationship, without private details;
• the working link between you, such as a reporting line or shared projects;
• a proposal for avoiding conflicts of interest, for example who will carry out your partner’s assessment;
• a request to treat the information confidentially.

You may ask the employer how the information will be stored and who will have access to it. The employer may not ask for more information than it needs to manage the conflict of interest.

ബന്ധം അവസാനിച്ചാലോ?

The end of a relationship is the moment when the legal risks are greatest. Agree with each other, and if needed with your manager, how you will continue to work together, and report unwanted behaviour without delay.

If your former partner continues to approach you against your wishes, contact the confidential adviser or use the complaints procedure. The employer is then obliged to take your report seriously and to act. If you are the one being accused, cooperate with the investigation and make sure your side of the story is heard. Do not use information from work systems to follow or approach your former partner: as the Rotterdam case shows, that can cost you your job.

An employer may consider moving one of the two to another team. That measure must be reasonable and must not amount to a hidden penalty for the person who reported the problem.

What can we do for you with a relationship at work?

നമ്മുടെ തൊഴിൽ അഭിഭാഷകർ advise employees and employers on relationships at work and the disputes that can follow from them.

• We review your relationship policy or code of conduct against Article 7:660 of the Civil Code, the GDPR and the works council’s consent rights.
• We draft a proportionate disclosure rule and a procedure for moving reporting lines or assessments.
• We advise you before a conversation, warning or transfer, so that the measure fits the breach.
• We assess a dismissal or dissolution request against the grounds in Article 7:669 of the Civil Code and calculate the transition payment.
• We assist you in a harassment complaint, as the person reporting or the person accused, including the hearing of both sides.

ചുരുക്കം

• Dutch law does not prohibit a relationship between colleagues, and a blanket ban by the employer is very difficult to defend.
• An employer may require disclosure and take measures where there is a conflict of interest, especially between a manager and a direct report.
• The employer must prevent undesirable behaviour at work under the Working Conditions Act and protect employees under Article 7:658 of the Civil Code.
• Dismissal requires a ground under Article 7:669 of the Civil Code; a relationship on its own is not enough, but misconduct around it can be.
• When a relationship ends, agree how you will work together and report unwanted behaviour early.

പതിവു ചോദ്യങ്ങൾ