'Contract of silence' smothers teachers' critical voices
Managing a disturbed employment relationship is a way to get rid of difficult employees. No one knows how many teachers leave their institution so quietly with a settlement agreement and a duty of confidentiality. “Critical teachers need better protection.”
A labor dispute can arise in many ways. And fortunately it does not lead to a bitter outcome in all cases. But if an employer or manager really wants to, he can aim for a disrupted employment relationship.
“If they really want to get rid of someone, there is a box of tricks for that,” says AOblawyer Geert Wind. Over the years he has seen all the examples and variants. “It often boils down to bullying. For example, an interim manager comes to the school, tried and tested. He knows exactly which buttons to press. He sends an email with a request for an explanation about something, exaggerates here and there and knows: with this I can provoke a reaction. The employee, who already has the necessary emotions, does not recognize the pitfall, reacts with a vicious tone, perhaps not very handy, and he allows himself to be lured out.”
The employee, who is already with the necessary emotions, does not recognize the pitfall and allows himself to be lured out
Wind continues: “An executive who wants evil will try to magnify something. As an employee you then have to do the exact opposite: make it smaller. I always say: don't count to ten, but to thirty.”
Anyone who has the impression that he is being put under pressure would do well to seek legal help. The adage applies here: the sooner you get there, the better. A 'seriously and permanently' disrupted employment relationship is grounds for dismissal, regardless of who is responsible for the 'disruption'. The conclusion is almost always that the employee ends up on the street, even if he doesn't want to leave at all.
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“If two parties can no longer get through the same door, one has to go,” says employment lawyer Guus Boogaard of the Meesters van Zaken law firm. “In the case of a divorce, a judge will not hold on to the marriage if one of the two does not want to continue. Logically, it is simply the employee who is made redundant and not the employer. In that sense you can say that as an employee you are lagging behind.”
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Harmful
The latter also illustrates it verdict in the case of assistant professor Susanne Täuber, who was dismissed by the University of Groningen because of a publication that her employer considered harmful. The subdistrict court ruled last March that the disturbed employment relationship can be blamed on both sides, but the university played 'an important, if not a decisive role'. Nevertheless, the judge upheld the ground for dismissal.
According to Täuber, employers too easily turn to a disrupted employment relationship to muffle critical voices, because they know they can get away with it. “If you report abuse or criticism, it is quickly framed as a conflict. The focus shifts from the report to the reporter. That needs to be addressed, not the problem itself.”
If you report an abuse or criticism, it is quickly framed as a conflict
The law does not explain what exactly is meant by 'disturbed employment relationship'. But it is not easy to blame everything, says professor of employment law Evert Verhulp, affiliated with the University of Amsterdam and who obtained his PhD on freedom of expression within organisations. “Within an organization you can expect a certain degree of tolerance from colleagues. Suppose an employee raises a socially relevant issue and expresses himself in strong terms, but within generally accepted standards of decency. The fact that there are a few colleagues who take offense to this is in itself insufficient ground.”
One mishap does not make a broken relationship, but in practice collisions accumulate in a long-lasting conflict over a longer period of time. If an employee is suspended, then that disciplinary measure alone makes a possible return more unlikely. The disputes committee in education only tests such a suspension marginally, which means that it only assesses whether the employer has followed the procedures, not whether the suspension is substantively justified.
Nevertheless, an employer is less likely to get away with this ground for dismissal than ten years ago, is the experience of AOblawyer Wind. “In recent years, I have noticed that judges have taken a closer look at whether the employment relationship has really been permanently disrupted. Has the employer made every effort to restore the relationship? Consider, for example, mediation. And has he carefully considered all options for reassigning the lecturer to another location? In one of our recent cases, the employer had not made sufficient efforts to resolve the disrupted but not permanently disrupted employment relationship and the employment contract was therefore reinstated by the court.”
way out
The point is of course: in most cases, a file does not reach the court at all. The vast majority of dismissal cases are settled and end with a settlement agreement. Simply put, this is a series of agreements between employer and employee about the departure of the employee. There can be all kinds of reasons for drawing up such an agreement, which does not necessarily have to be a conflict.
The condition is that both parties must want such a way out. This applies not only to the employee, who may still be full of frustration and sadness, but also to the employer. Wind: “I sometimes see an employer not cooperating. Then they feel just too well that Pietje really wants to leave and they let him boil in his juice for a while. That is also a form of bullying, you sometimes see that when the relationships are already quite troubled. Then they say: you can always resign, we will not hold you to your notice period. But resigning yourself has significant disadvantages.”
There are clear advantages to a settlement agreement, lawyers Boogaard and Wind both say. “A big advantage is that you sit at the table yourself and can influence the way in which you are discharged. You can generally negotiate more benefits than you would get from a judge and you ultimately know what you are signing for,” says Boogaard.
You retain control over your own departure with a settlement agreement. And you can claim a financial safety net
“You are in control of your own departure. You can see how to make the cake a bit bigger. This is not always due to a higher transition payment. You can also be exempted from work until your discharge date,” said Wind. “And you can claim a financial safety net, including a benefit from the UWV. Plus: you have clarity relatively quickly, you know where you stand.”
Going to court is very different. This is often time-consuming, expensive and involves a great deal of uncertainty. Moreover: the chance that someone will return to their old workplace after a legal procedure is very small. Too much has already happened and too much time has passed.
For all these reasons, employment lawyers often advise against legal proceedings. Boogaard: “I've been doing this profession for almost forty years and I've seen how much impact such a procedure has on people. You can easily spend half a year in uncertainty and that can be a great psychological burden. Or even longer, if you appeal. And then things can go wrong. After all, it is often in the interest of employees themselves that prospects emerge within the foreseeable future. Often people brighten up again as soon as they know that they no longer need to have anything to do with their employer.”
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Case law
One teacher who did decide to litigate is Paula van Manen. She had to leave Roc Nijmegen after she published a book about the introduction of a new educational concept. She fought all the way to the Supreme Court, which judged that the Court of Appeal must hear the case again because freedom of expression was not sufficiently taken into account. Her lawyer Wouter Pors called that an important statement for teachers. The case is now before the Court of Appeal in Den Bosch, three and a half years after Van Manen came home.
In practice, a court victory can create room for higher compensation and new case law. Moreover, a lawsuit often generates extra attention and publicity, which school boards are not waiting for. With a settlement agreement, the employer remains unaffected. Even if he has made a mess of it or has an interest in keeping abuses indoors. The termination contract usually stipulates that employees must keep their mouths shut.
It is not known how many settlement agreements are signed annually in education. Numbers are simply missing. But we all pay a price for it, argues Täuber. “All non-disclosure contracts deprive us of our view of problems that may arise at educational institutions. Everyone has the right to sign a settlement agreement, because not everyone has the means or strength to fight on. I understand that very well. But because all those people disappear so silently, we as a sector lack important knowledge about problems that can play a role in schools. Publicly funded organizations should be more open about the settlement agreements they conclude with teachers.”
People who are critical are too often seen as troublemakers. But critical teachers are not bad employees, they are very involved
In surveys, teachers who leave education regularly indicate their own organization as an important reason. Lack of control, poor leadership and social insecurity emerge as culprits. In 2020, the House of Representatives adopted a motion of the PvdA, GroenLinks and SP. The then education minister Arie Slob translated that call into a number of initiatives on participation and control. There is not much more in the pipeline for the time being, an OCW spokesperson indicates when asked.
Critical employees must be protected much better, as Täuber and Van Manen both underline. “People who are critical are too often seen as troublemakers. But critical teachers are not bad employees, they are very involved. They want to improve education and their organization,” says Täuber.
“The question remains how often it happens that you are pushed in the direction of a settlement agreement. For schools, but also for trade unions and insurers, this is the easiest way and undoubtedly also the cheapest, because litigation costs a lot of time and money. But a settlement agreement is not the best option in all cases, for example when it concerns a matter of principle. So, as an employee, think carefully about what you want yourself and also dare to say to the lawyer or lawyer: 'Thanks for the advice, but I'm going to do it differently', says Van Manen.
Resign yourself? Look after!
Employees should be very wary of resigning themselves, warns AOblawyer Geert Wind. “You have then become culpably unemployed. You will no longer receive a salary, but you will not be entitled to any other compensation, except in very special circumstances. There is then no financial safety net, only assistance. And the social assistance has an asset test, so a home or savings, for example, are also counted. It is generally very disadvantageous to resign yourself. In short: only resign if you have found another job, is the advice.”
Also read: 'If you are suspended, you are tipsy game'
This article appears in the May issue of the Education magazine, packed with journalistic background articles, interviews, columns, legal advice and tips. Would you like to receive the Education magazine in your mailbox every month? Become a member of AOb.
