It’s finally here: the Radboud University code of conduct. A good thing according to many, but experts find the text too vague and doubt the legal value of the document. ‘As an employer, you have to communicate much more clearly what the sanctions are for transgressive behaviour.’

A beautiful spring day, last academic year. The Pieter Bondamplein next to the CultuurCafé is full of students. The main act of Radboud Rocks, the annual Radboud University festivities, is a Q&A on student well-being, with presenter Tim Hofman. Hofman previously devoted an episode of his YouTube programme BOOS to sexually transgressive behaviour on the part of jury members, a bandleader and a director at The Voice. The episode attracted 10 million viewers, and led to much indignation.

The conversation with Hofman quickly turns to social safety on campus. When the presenter hears that the university does not yet have a code of conduct, he is astonished. ‘That’s really bad news, because it means that you’re not telling the people in power how not to abuse their power,’ he says. As Hofman points out, RTL and Talpa probably didn’t have a code of conduct either, which is what made the abuses at The Voice possible in the first place.

Email the rector

By the time Radboud Rocks takes place, the code of conduct has been on the university’s agenda for some time. In fact, a document is already prepared and awaiting approval from the Joint Assembly. However, the Works Council refuses to give it the go-ahead, arguing that the code of conduct doesn’t state clearly enough that a sexual relationship between a lecturer and a student is inadmissible.

Clearly, Hofman has no way of knowing that. ‘Where is your rector magnificus?’ he excitedly asks the audience. He then calls on the students to all send an email to the rector, asking him to provide a code of conduct. ‘It works,’ he says. ‘You’ll see how quickly things happen once you start sending 250 emails a day.’ And it does seem to work, even though, in the end, only eight students answer Hofman’s call: at the next Joint Assembly, on 4 July, the code of conduct is finally approved by the Works Council.

‘Supervisors can now call their employees out’

The code of conduct came into force at the start of this academic year. The document was published on the university website, and employees were informed about it via an internal email and social media.

Confidential advisor Marieke van der Burgh is happy with the code of conduct, and hopes it will help initiate dialogue and raise awareness. ‘The code makes it easier to call each other out on unacceptable behaviour. Supervisors can now call their employees out by referring to the code of conduct. It makes it clearer what behaviour is unacceptable.’

An added advantage, says the confidential advisor, is that if someone has an unpleasant experience that is listed in the code of conduct, they may be more willing to talk to the perpetrator or contact a confidential advisor. ‘It’s easier if you feel that the organisation is on your side.’

Students also benefit from the code, says Van der Burgh. ‘Think of cases where a lecturer says something offensive or uses a disrespectful tone. With the code in hand, and with the potential support of a confidential advisor, students may find it easier to address such incidents with the person in question or their supervisor.’

Van der Burgh is particularly pleased about the section on relationships between a lecturer and a student. ‘It states that such relationships involve a power inequality dynamic. Lecturers in particular aren’t always aware of this. And yet, this inequality often plays a role in the contact between students and lecturers, which increases the risk of boundaries being crossed.’

The code also makes her work easier. Depending on the severity of the offense and the notifier’s wishes, a number of steps can be taken. ‘You can call the person in question out on their behaviour, report it to their supervisor or a complaints committee, conduct an investigation into the organisational culture, take legal steps, or even file a police report. The hope is that the code will make it easier to take steps like these. How this will work in practice still isn’t clear.’

Compulsory meetings

Marijke Naezer, an expert on misconduct at universities, is also pleased about the university finally having a code of conduct. In 2019, Naezer joined forces with Radboud University professors Marieke van den Brink and Yvonne Benschop to write a high-profile report on undesirable behaviour in academia for the Dutch Network of Women Professors (Landelijk Netwerk Vrouwelijke Hoogleraren). ‘A code of conduct helps by creating a clear normative framework,’ says Naezer. ‘If breaking the rules really has consequences, this type of code can help change people’s behaviour.’

After all, says Naezer, research shows that people adjust their behaviour to what they think others in their environment will tolerate. ‘If you feel, partly thanks to a code of conduct, that people at the university won’t accept certain behaviours, you will be less likely to engage in them.’

Naezer emphasises that policy around such codes of conduct should ideally be formulated, shared, and kept alive in collaboration with students and employees. ‘You can encourage this by talking about the document and intervening whenever anyone breaks the rules.’ However, she says, this is not what usually happens in practice. ‘Unfortunately, what you often see is that a small group of administrators write a code of conduct, which then disappears into a drawer and is all but forgotten.’

Poster campaign

In this respect, Naezer sees room for improvement in Nijmegen. ‘Radboud University’s code of conduct is a first step. Now the university has to show what role this document can play.’ Publishing the code on the internet and sending out an email isn’t enough, she says. ‘When you hire new employees, you can talk to them about it, and include the code of conduct in courses aimed at PhD candidates and other staff. The university can also organise meetings with experts on various types of transgressive behaviour, or host a theatre performance on campus.’ A more accessible intervention, says Naezer, is a poster campaign, similar to the one run by the University of Amsterdam in the autumn of 2021 around the question: ‘Do you know what to do if you experience undesirable behaviour?’

It would be best if sessions about the code of conduct were made compulsory, says Naezer. ‘Otherwise people in important positions won’t attend. And that while this kind of code of conduct is first and foremost aimed at them.’ Willy van Berlo, from the Rutgers Centre on Sexuality, largely agrees with Naezer. She also emphasises that it is essential that the university works on bringing the code to life. ‘When it comes to a code of conduct, several aspects are of importance. For example, there should be confidential advisors and a complaints committee that people can appeal to. This is already in place at Radboud University. But it’s also important to communicate via social leadership what the code is really about.’

Unclear and vague

There is clearly still some work to be done in terms of communication, but what about the document’s content? Is that as it should be? Marlet Bron is an employment lawyer at AbelnBron in Groningen, and many of her clients are victims of transgressive behaviour at universities. At Vox’ request, she took a look at the code of conduct.

In a code of conduct, the employer should clearly state which behaviour will be tolerated, and which won’t be, says Bron. She finds quite a few passages in the code unclear and vague. ‘It could have been formulated more concretely.’ For example, the code of conduct states that it is intended to call employees out on unacceptable behaviour, and that severe violations may lead to employment measures. ‘I find this very unclear. It creates the feeling that an employee must first be called out on unacceptable behaviour before any steps are taken. But what exactly is a serious violation? And what are these employment measures? Does it refer to pay being withheld, or the employee being suspended, or fired?’

‘The code doesn’t state clearly what qualifies as undesirable behaviour’

Bron also feels that the code includes unclear examples. ‘For example, lecturers and students aren’t allowed to engage in a private relationship for the duration of their professional contact relationship, but what qualifies as a relationship? Also, employees should avoid personal contact with students, and it is forbidden for lecturers to invite students for one-on-one meetings at their home. But what if a student unexpectedly drops by your house to hand in their thesis, is that something you should report as a lecturer?’

Willy van Berlo, from Rutgers, adds: ‘The code doesn’t state clearly what qualifies as undesirable behaviour. This may seem like something that should be obvious, but in practice, a lot of people don’t really have clear ideas about it. In addition, the code states that it’s important to call people out on their behaviour. This is precisely why it’s important that all employees know what qualifies as unacceptable behaviour.’

Sanctions

The existence of these grey zones is not Bron’s only point of criticism. ‘As an employer, when you formulate a code of conduct or staff regulations, you have to indicate clearly what the sanctions are if the code is violated. You should also communicate this clearly, so that you can act on it. This is something that’s missing here, in my opinion.’

Without clear communication, it’s harder for employers to impose measures. Take the case that came to light last October at Leiden University. A Professor of Astronomy who had for years been guilty of abuse of power and undesirable behaviour was told he was no longer welcome at the university, or allowed to supervise PhD candidates. But he wasn’t fired, and he remained on the payroll. ‘Among other things, there are labour law-related reasons for this,’ a university spokesperson reported in the Leiden University’s weekly newspaper, Mare.

Could the university have fired this man on the basis of a clear code of conduct? ‘This is about what an employee can expect as a consequence of their behaviour,’ says Bron. ‘Then there’s the extent to which the employer dares to follow through. If they fail to follow through once, it becomes harder to do so the next time.’

Peanuts

Bron explains how judges usually look at cases like these. In terms of labour law, the assumption is that as an employer, you have to communicate clearly what the sanctions are for violating a given rule – and of course the rule itself must also be clear. A famous precedent is a 2001 case at a catering company at Schiphol. The company had a strict code of conduct that stated that employees were never allowed to eat the company’s food, not even if the packaging was open or the food was past its sell-by date.

When one of the company’s employees reported eating a few peanuts from an open package, he was fired on the spot. A lawsuit followed. Bron: ‘According to the judge, the employer had clearly communicated what was allowed and what wasn’t. The employee understood the consequences of his behaviour, so he was fired. And the judge upheld this decision.’

This kind of clarity is lacking in the Radboud University Code of Conduct, says Bron. ‘As an employer, if you don’t tolerate a professor engaging in transgressive behaviour towards a PhD candidate or student, you must specify in your code of conduct that this will lead to instant dismissal. Otherwise you risk the employee saying: it’s OK for someone to correct me, but dismissal goes too far. In which case, the odds are high that a judge will follow the employee’s cue.’

Bron also wants to dispel a common misconception: if an employer wants to dismiss an employee for transgressive behaviour, they don’t need to file a police report. ‘As a company, you can decide for yourself how you want your employees to behave. You can even specify in your code of conduct that employees must refrain from certain behaviours, such as engaging in affective relationships within a hierarchical power dynamic, that may not be punishable by law but would still justify instant dismissal in case of a violation.’

Are judges so detached from the real world that codes of conduct must specify such obvious rules on transgressive behaviour, and in such detail? No, says Bron. ‘Over the past few years, many #MeToo labour law cases have come to light, also outside universities. The tendency is for judges to be stricter in considering what is socially acceptable behaviour. Employees are increasingly expected to comply with a certain standard of behaviour, but it’s still important to lay this down in a clear code.’

Sticker

Actually, says Bron, the code of conduct should come with a big yellow Warning! sticker. ‘Then you’re saying: if you break the rules and fail to behave in the way we expect you to, you can be dismissed, or suffer other employment-related consequences. Get your employees to sign the document if need be; that will make the urgency very clear. It may be a negative form of communication, but otherwise people may see it as too non-binding.’

How can the university formulate a better code of conduct then? One way, says Bron, would be to use concrete case studies to talk about desirable behaviour and what the consequences should be for various forms of transgressive behaviour. ‘You could, for instance, indicate that if someone is verbally aggressive, they will first be offered a course, but if the behaviour continues, they will be dismissed. If the consequences of certain behaviours are predictable for employees, the measures imposed are more likely to meet with the judge’s approval.’

Translated by Radboud in’to Languages.