Annetje Ottow, president of the Executive Board, was ‘deeply saddened’ when she learned about the misconduct of astronomy professor Tim de Zeeuw, who for years engaged in a ‘systematic pattern of slander, abuse of power, gender discrimination, rude behaviour, public humiliation’, made ‘sexually-charged comments’, and made ‘unwanted physical approaches’ to at least one employee.

He will ‘never ever’ be welcome again, Ottow said. She was ‘mortified’ by the fact that this had happened and when she heard just how hard it had been for the complainants, she ‘felt it to her core’.

In other words: what De Zeeuw did is entirely unacceptable. And yet, the Board has not fired him. ‘Since the academic integrity of this professor is indisputable, there are no grounds to strip him of his professorship’, Ottow told Mare. Because of ‘employment law concerns’, she told NRC.

But if this misconduct is not enough to sack a professor, what is?

MISMATCH

It is ‘perplexing’, thinks Leiden professor of labour law Stefan Sagel, who is also a partner at law firm De Brauw Blackstone Westbroek. He was not involved in this case, but as a lawyer, he has often handled similar cases and has also published on the employment law-related aspects of transgressive behaviour.

As an outsider, he notices that there is ‘somewhat of a mismatch between what is communicated in the newspaper, i.e. that the behaviour is entirely unacceptable, and the university’s response. Such bad behaviour should really warrant dismissal.’

The quality of someone’s scientific work is no reason for them to remain a professor. ‘In fact, if you ask me, stricter standards should apply to those in charge. The exemplary role of a professor is not just about academic integrity, but also about how you treat people. The argument that he is of eminent scientific stature does not excuse misconduct of any kind. That is often precisely the problem in cases like this. At a certain point, some people think they can get away with anything because of their excellent substantive achievements and as a result, they consider themselves to be untouchable.’

Sagel stresses that he was not privy to behind-the-scenes information, but is willing to take an informed guess at the reasoning behind the response.

The first guess: ‘The university might have been reluctant to pursue the most severe course of action and risk having to pay severance.’

SOFT APPROACH

Because if De Zeeuw is fired, the court will determine whether his conduct is merely ‘culpable’, or whether it is ‘seriously culpable’. This is an expensive distinction, because only in the case of ‘seriously culpable’ behaviour does the dismissed person lose the right to transition payment, up to a maximum of one year’s salary.
For a professor, that is easily a hundred and fifty thousand euros.

But there is no clear jurisprudence in this respect. ‘Not all judges think that transgressive behaviour gives the employer the right to terminate the contract’, says Sagel. ‘In some past cases, the judge’s approach was, in my opinion, a bit too soft. And that’s something employers have to be aware of as well. It’s difficult for employers to take vigorous measures, because this may backfire if the judge has a more nuanced view on the matter.’

Sagel recently worked on the case of a drama teacher in Maastricht who had been fired for unwanted touching and sexual comments. The judge ruled that, although the teacher had engaged in transgressive behaviour, he was still entitled to severance pay. ‘This man had slapped a student on the buttocks and given another student a full-body massage twice. This is rather serious, but according to the court, it does not constitute serious culpability.’

The second guess: the university also has some explaining to do. De Zeeuw’s misconduct had gone on for years and signals were not picked up in time. ‘If signals were ignored or if there is a culture of permissiveness, it becomes very difficult for an employer to kick someone out’, says Sagel. ‘Why should he be fired now if he wasn’t corrected before? That’s something a judge might understandably struggle with.’

BACKBONE

Perhaps that is why the university backed out, especially considering the fact that De Zeeuw was about to retire. Whether that was the right decision, ‘is debatable’, Sagel thinks. ‘Because they could also have said: Never mind the risk of paying compensation. Let’s send a signal that this behaviour is grounds for immediate dismissal.’

Sagel himself is not very impressed with the way the Board handled the matter in terms of publicity. Especially the fact that they did not disclose the name themselves shows a ‘lack of backbone’, according to him.

The university could have chosen to publish the name itself, but let others ‘do the dirty work’. ‘It was to be expected that the media would start looking and that the name would come out within three days. But now, fellow professors were put in a position where they had no choice but to say: “It wasn’t me.” The university put the responsibility to communicate this on their employees, and on the media. That was a conscious choice.’

Furthermore, the Board has not taken responsibility for what happens outside of the university. ‘If you know that someone is – in the university’s own words – engaging in entirely unacceptable behaviour, but don’t share the name, you’re basically saying, “We are kicking him out, but what he does elsewhere is none of our business.”’

In the end, it comes down to a balancing of interests, says Sagel. ‘And in this case, the university put the offender’s interests above those of colleagues.’