Uitspraak
RECHTBANK AMSTERDAM
beschikking van de kantonrechter
[verzoeker]
Accenture B.V.
VERLOOP VAN DE PROCEDURE
Accenture ten laste van Accenture een billijke vergoeding toe te kennen. Daarnaast heeft [verzoeker] verzocht om Accenture te veroordelen een vergoeding wegens onregelmatige opzegging en een transitievergoeding te betalen.
Primary issue:Respecting the Individual : Sexual Harassment : Unwelcome touching, clearly of a sexual natureSummary:RP alleges that subject sexually harassed an employee by touching their rear.(…)
Details:On February 24, 2022, at 11 PM, [verzoeker] sexually harassed one employee (name and job title unknow). The employee has reported the issue to [naam 2] . [naam 3] knows about the situation; however, he does not know the identity of the employee. [verzoeker] has sexually touched the employee on the employee’s rear. There is a witness (name and job title withheld) to the situation. The employee did not feel in danger working around [verzoeker] again; however, the employee did not feel comfortable working with [verzoeker] anymore. (…)Reporter Additional Information:(…)To add: He also asked me to go on a dinner with him, where we won’t be discussion business, but other things, while he was touching me.
Melder 1:- Subject was most senior person there.(…)- Melder 1 had alcohol through the evening, but she did not recall how many drinks, she had wine. There was not much food – shad had 2 bitterballen (tapas) which is not much.- Subject had alcohol too. She does not know how many drinks but at a certain point he bought a bottle of coffee liquor and started offering shots to other, including Melder 1.She cannot say if he was drunk.- Everyone was having conversations in a group and all of a sudden, she was talking to him. She cannot recall who approached whom. They were standing next to each other. Not sure what they were discussing, something about supply chains she was trying to get to know him, he asked what she was doing.- Then he started getting a bit touchy and the conversation became a bit weird, he said she had a really nice facial expression.- He was touching/caressing her back throughout the evening. She felt uncomfortable – she would have been sharper if she was going out socially but was not expecting this with colleagues.- He then asked her to go for dinner with him and said, “we won’t be discussing business, but other things” and it was during this conversation that he grabbed her bottom with a full-hand. She was upset at this point in this interview. She was not sure if the dinner proposal was before or after he did this. He also asked for her phone number around this time and she gave it to him.- She was super-shocked. She is not sure of her reply but went with the flow a bit. She wished she had responded differently but she didn’t know what to say, she wasn’t strong enough in the moment, it was shocking and overwhelming.- Her collague, Getuige 1, saw the shocked expression on her face and asked her what was wrong(…).- Getuige 1 did not see Subject touch her bottom as he was standing in front of her.- She is not sure how long it took but she moved away from Subject and told Getuige 1 what was going on. He was also shocked and paralysed. They did not respond or do anything in the moment.- Another colleague, Getuige 2, a manager within [department], was also there talking to Getuige 1 and heard her telling Getuige 1 what had happened. Getuige 2 is leaving Accenture, his last day is maybe today.(…)- Afterward, they they continued to have drinks, she did not understand it to be really wrong because she was still in shock and paralysed – so she was not trying to avoid him. She still spoke to him and he touched her back again but not her bottom(…).Getuige 1:When referring to Melder 1, Getuige 1 explained that “She’s quite junior and didn’t tell all details”
but Getuige 1 confirmed that he did see something. (…)Getuige 1 explained that at one point, Melder 1 looked at him “with a little fear in her eyes”
and then looked at him in the same way for a second thme. Getuige 1 explained that he moved a little closer to Melder 1 and he saw that “[verzoeker] had his hand on her back…between her back and bottom”.
(…) and stated that “it’s not basically where you would put your hand on a colleague”.
Getuige 1 added that [verzoeker] may have asked Melder 1 “to go to a meeting with him, but not to talk about work” –
Getuige 1 thinks that it was along the lines of going to get a bite to eat. Getuige 1 explained that he did not hear this himself, but this is what Melder 1 had told him.(…)- Getuige 1 stated that de day after the incident, he and Getuige 2 had an hour-long call with Melder 1 where Getuige 2 outlined that the incident was not in line with ACN’s values and that he hoped that Melder 1 would pursue via a formal route.(…)Afther the interview, getuige 2 provided the name of melder 2) as someone else who is rumoured to have experienced similar behaviour from [verzoeker] ..Getuige 2:(…)
An evening (it was or August 14th or Sept 18th 2020) they had an after work drink with other colleagues from the strategy practice. (…)-At a certain point Melder 2 was sitting at a table with other MDs but there were people leaving and she seated next to Subject. He started discussing about not work-related things and told her “I wish you were older and have a relationship with you
”. Melder 2 doesn’t remember exactly what else he said, but he became touchy and physical and start putting his hand on her leg and his arm around her and down to her waste. She had to slap him off her leg. He did that in a very inappropriate way. She did not feel safe. He was not taking a “no” as an answer and he was just repeating it.(…)-He did the same and was still touchy with Melder 2 on the way to the restaurant, on the public transport and until they reached the restaurant.-He had difficulties in restraining himself and Melder 2 believes he was drunk, or at least he was drinking a lot during all the evening: he was still touchy, and she had to ask him to stoop 10 or 20 times through all the evening.- When he stopped with her, he did something similar with other 2 junior colleagues (Getuige 3 and Getuige 4) before he finally left.- Everybody was shocked and Melder 2 was shaken because she trusted Subject. About the other 2 female colleagues, one was new, and she was completely like “we cannot accept this
”. Melder 2 was so angry and she wanted to come forward but the other two were not sure did not want to.- The week after Subject went to the office and he was normal, he claimed no to know how bad he was that night, and he was acting like he could not remember. But Melder 2 reminded him what’s happened, and he apologized. They had a discussion, but he was like begging Melder 2 no to go forward and talk about this, he said “do you know what’s going to happen with my career? It will be finished”. Melder 2 stopped and did not report it. She was an [position], and he is an MD.- [verzoeker] knows that Subject called everyone afterwards to say sorry, as they have discussed about this. (…)Getuige 3:-(…) When Getuige 3 said that she was looking forward to her burger, Subject said to her“I’m looking forward to having you instead”.
He did not touch her, nor was he too close. (…)(…) When in call with Getuige 3, Subject said he did not recall what’s happened and said sorry and that it was out of line. (…)-Getuige 3 called the Subject, explained to him what’s happened , and said to him that she did not like the comment. Getuige 3 accepted his apologize but said to him you need to work on this and avoid this happening again. For her was ok like that, she considered it closed. (…)-Getuige 3 did not see Subject touching Melder 2 nor Getuige 4 at the [naam bar] nor at the restaurant, but she has felt a weird atmosphere.(…) Melder 2 said that Subject touched her that evening (her back and waist).
But Getuige 3 has confirmed to Getuige 4 that this happened a minute later, the same evening, Getuige 4 was standing behind Getuige 3 when that happened.(…)- She does not know of any other similar incidents involving Subject, but said his reputation is like this.
September 2020- He did not know the exact details of what he said but recalls it being along the lines of, “I wish you were older and could have a relationship with you”.(…)- He knew it was wrong and felt extremely ashamed.- When he has personal issues, he tends to drink too much and do stupid things.- He tried to apologies to her many times to the best of his ability but in a way that would not put too much pressure on her.(…)- [verzoeker] could not recall being physical the same evening with Melder 2 nor putting his hand on her leg or arm around her down to her waist – (…).- [verzoeker] definitely could not recall Melder 2 having to slap him off her leg and him not taking “no” for an answer –
24 February 20221. during drinks at [naam bar] , organized among colleagues, on 24 February 2022 you have put a female colleague at a more junior level in an uncomfortable and difficult position;2. that evening, you made the comment that the female colleague has a really nice facial expression;3. that evening, you have asked the female colleague her phone number outside of a business context;4. that evening, you have touched/caressed the female colleague several times on her back, which has been witnessed by another colleague;5. that evening, you have grabbed the bottom of the female colleague;6. that evening, you asked the female colleague out for a private dinner where you would “not be discussing business, but other things”
;7. the influence of your behavior has been witnessed by other colleagues;September 20208. at least three other more junior female colleagues (referred to as “colleague 1”, “colleague 2”and colleague 3” have experienced similar behavior from you at an evening event on September 2020, taking place at [naam bar] and/or thereafter on your way to and/or at the burger restaurant [naam restaurant] .9. that evening, you have put colleague 1, to whom you were supposed to be a professional mentor to, in an uncomfortable and difficult position, even after having been requested to stop several times;10. that evening you told colleague 1 “I wish you were older and that I could have a relationship with you”,
which you have admitted;11. that evening you have put your hand on the leg of colleague 1, and your arm around her and down to her waist and you have not topped; not taking “no
” for an answer.12. that evening, you were repeatedly physical towards colleague 1;13. one week later, when you apologized to colleague 1, you said to her something along these lines: “do you know what’s going to happen with my career? It will be finished”,
which has put pressure on colleague 1 and which influenced colleague 1’s decision not to report the incident at that time;14. when in a conversation with colleague 1 in November 2021 talking about the incident you commented to her something along these lines: “we are both responsible for what’s happened, it wasn’t just me”,
which is not only untrue but also made her again feel even more uncomfortable;15. that evening (September 2020), in response to colleague 2 mentioning that she was looking forward to her burger, you responded “I’m looking forward to having you instead”; (
Dutch translation“Ik heb zin in jou.”)
16. that evening (September 2020) , in response to colleague 3, who joint Accenture only that month, asking if you would like something to drink, you responded “I would rather like to have you”;
(Dutch translation “Ik heb zin in jou.”)
In general17. you have misused your senior position towards more junior female colleagues from the same business area (Strategy & Consulting); and18. you have acted in violation of the Accenture Policies, from which follows that Accenture has zero tolerance for disrespectful behavior or harassment of any kind.
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Beoordeling
Ontslag op staande voet
Vergoeding onregelmatige opzegging
Transitievergoeding
ernstigverwijtbaar handelen gesproken kan worden. Accenture voert aan dat daarvan in onderhavig geval sprake is. Daarbij geldt dat de beoordeling of sprake is van ernstig verwijtbaar handelen een andere is dan de toets van de dringende reden.
Billijke vergoeding
BESLISSING
€ 27.497,77 bruto, onder afgifte van een deugdelijke bruto/netto specificatie, te vermeerderen met de wettelijke rente over dat bedrag vanaf het moment van verschuldigdheid tot aan de dag van de gehele betaling;
salaris € 1.244,00
griffierecht € 86,00
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totaal € 1.330,00
voor zover van toepassing, inclusief btw, en te vermeerderen met de wettelijke rente vanaf 14 dagen na heden;