In May of last year, the university published a devastating report on Leiden professor of Caribbean archaeology Corinne Hofman and her partner Menno Hoogland. In it, an investigation committee described how the archaeologist couple had conducted a reign of terror for thirty years, during which students and staff were bullied, belittled and intimidated. This report was based on complaints from nineteen notifiers.

In addition to abuse of power and transgressive behaviour, the couple were also alleged to have violated academic integrity by carrying out excavations without the required permits and secretly removing research material from an archaeological depot.

Based on this report, the university decided to initiate a dismissal procedure against Hofman (Hoogland had already retired by then). However, in doing so, the Board ignored the investigation committee’s advice, which called for ‘healing for all those involved, including the two staff members in question’.

Last August, the subdistrict court ruled that Hofman may not be dismissed: the university had been ‘too quick’ to take the matter to court because Hofman should have been given the opportunity to ‘adjust her behaviour, be it with or without an improvement programme’. The court also ruled that ‘it is not certain that relations have been irreparably damaged’ and that ‘the possibility of reassigning Hofman to a modified role (...) has unjustly not yet been explored’. In short, the parties must first engage in dialogue to resolve this ‘sad matter in a meaningful way’, ‘possibly under the guidance of a mediator’. 

At the time, then Board president Annetje Ottow justified the immediate recourse to the courts by stating: ‘Simply too much has happened.’ And after the ruling in August, the university was left wondering: ‘If this behaviour does not lead to dismissal, then what behaviour does?’

What do employment law specialists have to say about this case? Mare approached three experts. They emphasise that they cannot comment on this specific case, but they can give a general interpretation of the matter.

‘The judge attaches considerable importance to whether the employer has first explored options other than terminating the contract’, explains employment law specialist Dirk Kranendonk. ‘Think of mediation or coaching. If the employer has not done so, the judge may come to the conclusion that the employer has not done enough to resolve the misconduct.’

‘I can imagine that this played an important role for the judge in rejecting the request for termination’, says Pascal Besselink, employment lawyer at DAS. ‘If an employer has appointed an investigation committee themselves which, upon completing its investigation, recommends starting a healing process, only for the employer to ignore this advice and then take the matter straight to court, you have to seriously consider the possibility that the judge will reject the request for termination. Because the employer is skipping an important step here. The fact that the advice is not binding does not detract from that.’

CONFIDENTIAL COUNSELLORS 

‘This is by no means an inconceivable ruling’, says Rembrandt de Haan, legal adviser at Onslagjuristen.nl. ‘A respectable institution like the university should not go against such advice from the investigation committee. If it turns out that undesirable behaviour has taken place, then you, as an employer, should do something about it. You also have a responsibility to give those signals to the perpetrator yourself.’

According to him, it is also significant that the judge describes the transgressive behaviour as ‘plausible’, just as the investigation committee had done in its report. ‘If the judge had been able to say that it was conclusive, or if the perpetrator had confessed, it might have been a different story.’

Furthermore, the investigation report showed that notifiers had already made complaints to various confidential counsellors years earlier, but that those reports were brushed aside at the time. ‘If complaints had already been made but nothing was done with them, yet the employer proceeded straight to dismissal, the judge may find that problematic’, says Kranendonk. 

Besselink and De Haan both agree that this can ‘certainly’ play a role in the judge’s considerations. De Haan: ‘You can’t just let such behaviour go unchecked and then suddenly storm off to court in indignation.’

But is healing even possible when the notifiers have described a decades-long reign of terror? ‘In many cases, the law is not black and white, but grey’, says Besselink. ‘It could just as easily be that you encounter a judge who says: this report is so clear, and it is so obvious that this relationship has been disrupted by everything that has happened, that it is impossible for this person to be reinstated in their position. The subdistrict court judge can then do two things: if only the employee is to blame, the judge can terminate the employment contract and award a transition payment. If the employer bears serious blame for the disruption of the employment relationship, the judge may award supplementary fair compensation in addition to the transition payment. That way, the employee can still be financially compensated for the employer’s procedural failures.’ 

CHANGES IN EMPLOYMENT LAW

In the Hofman case, the judge stated that the university had wrongly failed to follow the investigation committee’s advice, but that the misconduct was indeed plausible. So why did the judge not choose the latter option?

‘If this case had taken place before 2015, that would have been much more likely’, says Besselink. He explains that employment law changed in 2015 with the introduction of the Work and Security Act. Since then, the law (Article 7:669 paragraph 3 of the Civil Code) explicitly lists the eight grounds on which an employment contract can be terminated. 

One of those grounds is ‘a disrupted employment relationship, to such an extent that the employer cannot reasonably be expected to continue the employment contract’. However, in the Hofman case, the judge ruled that ‘it is not certain that the relationship has been irreparably disrupted’. And the employment contract may only be terminated if one or more of those eight grounds are fully met. 

‘That is why, since 2015, it has been more difficult for judges to grant termination’, says Besselink. Consequently, the change has led to a much higher percentage of rejected termination requests. ‘Much to the frustration of employers.’

Would it have been better for the university to opt for summary dismissal? ‘Summary dismissal is the most extreme measure: the employee is out on the street from one day to the next, with no income and no entitlement to benefits’, says Besselink. ‘Therefore, there are very strict requirements. In a case like this, where a thorough investigation has already taken place, summary dismissal is a less obvious course of action.’

De Haan: ‘Summary dismissal usually involves extremely serious misconduct, such as fraud, theft or violence. Moreover, such matters must be provable, which is often difficult in cases involving transgressive behaviour.’

Could the university’s legal department not have predicted the court’s ruling? ‘Each party makes its own considerations’, Besselink responds. ‘There can be all sorts of factors at play; there will always be considerations we are not aware of.’ 

‘I do think they thoroughly discussed it beforehand’, says De Haan. ‘I can also imagine that there is a strategic reason behind it: that as a university, you want to show that you are not to be trifled with and choose to go straight to the subdistrict court. A disappointing ruling is then accepted as part of the risk.’

The university and Hofman still have the option of appealing the ruling. However, the university has already stated that it will not pursue an appeal. Discussions between the two parties are currently ongoing.