Charlotte Urlus, 17 April 2026

Workplace misconduct: what do you need to do as an employer?

Workplace misconduct is a topic that is increasingly making its way onto HR agendas. It often starts with a “joke”. A comment about someone’s appearance, a sexually charged remark dismissed with “you should be able to take it”, or a nickname that just won’t go away. What begins as humor can escalate into harassment, bullying or discrimination — sometimes with serious personal and legal consequences. In this blog, you will find out when behavior crosses a line, what obligations apply to employers, and how to respond appropriately when a report is made.

When does behavior constitute workplace misconduct?

Transgressive behaviour is behaviour to which one of the parties does not (voluntarily) consent. Examples Workplace misconduct is behavior that one of the parties does not (voluntarily) consent to. Think of sexual harassment, bullying, discrimination or other forms of unwanted conduct.

Common examples include:

Someone being treated unequally or differently on the grounds of gender, background or sexual orientation.
Offensive remarks being made, persistent gossip, or inappropriate jokes being normalised — with the threshold for speaking up remaining high, as there is a real risk that things will only get worse.
Sexually charged comments being made, or someone being touched without their consent.

The common thread? What matters is how the person on the receiving end experiences it — not what the other person intended.

Your obligations as an employer

As an employer, you are legally required to provide a safe working environment. Under Section 3 of the Dutch Working Conditions Act (Arbeidsomstandighedenwet, or Arbowet), you must implement policies aimed at good working conditions, including the prevention and limitation of psychosocial workload. This covers at least aggression and violence, sexual harassment, bullying and direct or indirect discrimination.

That duty of care translates into three concrete steps. The first is prevention: establish a preventive policy and map the risks of workplace misconduct through a mandatory Risk Inventory and Evaluation (Risico-inventarisatie & -Evaluatie, or RI&E). The second step is investigation: as soon as you suspect that misconduct is occurring, take action and conduct a careful and proportionate investigation — without jumping to conclusions. The third step is taking measures: address misconduct with appropriate disciplinary action.

If you fail to take appropriate measures, you risk liability for the harm suffered by an employee. The burden of proof lies with you: you must demonstrate that you have fulfilled your duty of care. The consequences of negligence can be significant — from civil liability for material and immaterial damages to discrimination claims and serious reputational harm.

Prevention: start before there is an incident

Establish a code of conduct. Clearly describe what is and is not acceptable — including in informal situations and outside working hours. Set out which behaviors are not permitted and what the consequences are. Write the code in plain language and have it reviewed by a lawyer.
Create a reporting protocol. Make sure everyone knows what happens when a report comes in. A clear step-by-step procedure builds confidence and provides structure.
Appoint a confidential adviser. Whether internal or external, a confidential adviser is an accessible point of contact where employees can turn in confidence, without formal steps being taken immediately. The adviser listens and informs employees of the options available to them.
Lead by example. Standards are set through behavior, not just policy. Actively reject unwanted behavior — even when it is “just a joke”.
Foster a safe reporting culture. People only come forward when they know that something will be done with their report. Show that reports are taken seriously and that those who report are protected.

When a report comes in

When a report is received, decisive action is required — but without rushing to conclusions. Take the time for a careful and impartial investigation and ensure that the person who made the report is not further disadvantaged during that process. Do not treat the accused as guilty from the outset; the investigation must first be completed. Document everything, from the initial conversation to the final decision. That documentation is not only good governance — it is also your defence if the matter has legal consequences.

Conclusion

Workplace misconduct often starts subtly and is not always easy to recognize or to raise. As an employer, it is important to have preventive policies in place, to encourage a culture in which people feel safe to speak up, and to act swiftly and carefully when incidents occur. Every situation is unique and requires a tailored approach: when in doubt, it is advisable to seek legal advice before taking action.

Are you an employee dealing with unwanted behavior at work and unsure where to start? Or are you an employer facing a report or looking to strengthen your policies? Feel free to get in touch — we are happy to help you find the right approach..