Time and again, they make the news: professors who are guilty of transgressive behaviour. Not many are dismissed, though, which is strange considering how controversial and extremely expensive such a professor is. How is this possible?

Paul Bovend’Eert, Professor of Constitutional Law, is amazed that employees who have been found guilty of forms of serious sexual harassment are often allowed to keep their jobs. In an opinion piece, written in October, he called on Radboud University to ensure adequate enforcement of rules of conduct and integrity.

Because in Nijmegen, too, professors sometimes cross boundaries. The Argos radio programme revealed last summer that between 2017 and 2020, a Psychology professor had sent a Master’s student transgressive emails and confessed that he was in love with her. The man was given a warning, which was added to his personnel file as a yellow card. But he was not dismissed. Following new signals and reports, the professor in question is currently subject to a new, independent investigation.

A colleague from the Philosophy department could not be appointed Dean for reasons of inappropriate behaviour. He was offered a new workspace within the University, after being banned from the Faculty for an extended period of time. He is no longer allowed to teach, but he has retained his position as professor and the corresponding salary.

Growing number of complaints

Is it really that hard to show a professor the door? According to Bovend’Eert, it rather depends on what the man in question (these are usually men, Eds.) has done. ‘Was he guilty of groping, stalking or suggestive proposals?’

‘At a drama school, for example, physical contact is more likely to be part of the training than at a university’

These are things a judge takes into account when a case comes before the subdistrict court, the court of appeal, or the Supreme Court, says Bovend’Eert. The number of lawsuits is growing, as more and more complaints are filed around #MeToo in the workplace, from all kinds of companies and organisations. The corporate culture from which the complaint originates also plays a role, he says. ‘At a drama school, for example, physical contact is more likely to be part of the training than at a university.’

‘In case law, the question of whether there is a relationship of dependence is very important,’ says Bovend’Eert. If that is the case, the judge is far more likely to conclude that seriously culpable behaviour is involved. As a result, the person can be dismissed, either with immediate effect or by termination of the employment contract in the subdistrict court.

Employer and employee can also decide to part ways by mutual agreement, through what is known as a settlement agreement. This almost always includes a confidentiality clause.

Clear sanctions

Another important consideration is whether the organisation has clear rules, such as a code of conduct or a complaints procedure. And has the person been warned before? Employees need to be well-informed of the consequences of their behaviour, says Marlet Bron. Bron, who works as an employment lawyer at Abeln Bron in Groningen, often defends clients who were guilty of transgressive behaviour at a university.

She gives an example: ‘If a university’s code of conduct states that employees who take materials home may be dismissed with immediate effect, and you take home a roll of toilet paper, you can be dismissed for it.’

The same applies to an employee who has been given a warning concerning sexually transgressive behaviour. ‘The warning letter should state clearly that if certain behaviour recurs, it will result in immediate dismissal.’

Radboud University has a code of conduct and a complaints procedure that sets out various rules, including around sexual intimidation. Employment lawyer Bron told Vox last year that the code of conduct should specify more clearly the sanctions in case of transgressive behaviour.

‘We want to clarify the consequences of violating the code of conduct’

That message has now reached the University. ‘We want to clarify the consequences of violating the code of conduct, and when there is cause for internal or external investigation,’ President of the Executive Board Daniël Wigboldus and Vice President of the Executive Board Agnes Muskens wrote in an email to all employees in early October.

Severance pay or no severance pay

Another difficult question is whether professors dismissed for sexually transgressive behaviour are entitled to severance pay or not. Two years ago, the Advocate General who advises the Supreme Court called for a clear rule of thumb in case of sexually transgressive behaviour in a dependency situation.

‘There’s no such rule of thumb at present, which is why different courts make different rulings on this matter,’ says Bovend’Eert. ‘I hope the judiciary clarifies this soon, so that people no longer get off scot-free at one educational institution and not at another.’

‘First of all, if the fault is so great that there is serious culpability on the part of the employee, they are not entitled to transitional severance pay,’ explains employment lawyer Bron. If the court rules that there is no ‘serious’ culpability, an employee is entitled to severance pay. The transitional severance pay is a standard compensation equal to one-third of the person’s monthly salary (plus emoluments such as holiday allowance and 1/12 of the end-of-year bonus) per year worked.

This means that a professor with 9 years of service gets the equivalent of three months of salary. Assuming a salary of 6,375 euro, and including all the perks, this amounts to approximately 22,000 euro.