To vaccinate or not to vaccinate? As an employer, can you require your employees to be vaccinated? And what if one of your employees refuses to be vaccinated, can you fire that employee (summarily)? A "touchy" subject because it affects the privacy and fundamental rights of the employee.
Everyone has the freedom of choice whether or not to be vaccinated against the coronavirus, including employees. In doing so, employees can invoke their fundamental rights. The Constitution states that everyone has the right to respect for his privacy (article 10 of the Constitution) and the right to the inviolability of his body (article 11 of the Constitution). The European Convention on Human Rights also protects bodily integrity through the right to respect for private life (Article 8 ECHR).
The Netherlands does not currently have a general legal obligation to vaccinate. Therefore, there is no law under which you as an employer can oblige your employee to be vaccinated against the coronavirus.
On the other hand, as an employer, you have a legal obligation to ensure a safe and healthy work environment and to protect your employees as much as possible from coronavirus infection. The question, however, is whether this responsibility would justify a violation of the aforementioned fundamental rights. This will not easily be the case because, in order to fulfill this duty of care, you as an employer can in fact take other, less drastic, measures.
So in principle, you cannot force your employee to be vaccinated, but if one of your employees refuses to be vaccinated, can you attach negative (employment law) consequences?
On July 16, 2021, the first ruling appeared on summary dismissal for refusing employee to vaccinate against Covid-19.
What was going on here? The employee worked in a small office space (25 m2) with no windows or other means of ventilation. The employer did not want to take the risk that the employee would infect other colleagues because she had not yet been vaccinated. If the employee did not get vaccinated (yet), the employment contract would be terminated. The employee does not comply with the employer's request. She does not get vaccinated and is then summarily dismissed by the employer. Is this justified?
According to the judge, the issue at stake in the case is whether an employer can directly or indirectly require its employee to be vaccinated against the coronavirus. And whether an employee's refusal to be vaccinated constitutes an urgent reason for summary dismissal.
The court stated first that a general obligation to vaccinate does not exist, nor does it fit within the employment relationship. Indeed, vaccination affects the fundamental rights of the employee, as mentioned above. Employers must respect these fundamental rights. However, an infringement of a fundamental right may be justified under circumstances. In that case there must be a legitimate aim, necessity, proportionality and subsidiarity.
By attaching instant dismissal to the refusal to vaccinate, there is an indirect obligation to vaccinate (vaccination urge), this constitutes a violation of the employee's fundamental rights. In the judge's opinion, in the present case there are no circumstances that justify the infringement. Indeed, the risk of infection was very limited. In addition, there was no consultation with the employee about or joint consideration of other options to reduce the risk of infection.
In addition, instant dismissal is an ultimum remedium. The court therefore concluded that the urge to vaccinate, in the absence of a statutory vaccination requirement, was such an invasion of the employee's privacy, barring special circumstances, that it did not constitute an urgent reason for immediate dismissal.
Ultimately, however, the employment contract was terminated due to changed circumstances. According to the judge, the Covid-19 pandemic has strained relations between the parties.
Without a legal obligation to vaccinate, refusal of vaccination is not grounds for summary dismissal. Question that remains unanswered is whether this could provide reasonable grounds for dissolution of the employment contract in the Netherlands. I honestly expect that the mere refusal of a vaccination is insufficient for dissolution of the employment contract. However, we will have to wait until the first Dutch court rules on this.
Want to learn more about this topic? Then follow the workshop Privacy in employment law during the Knowledge Market of Data&Privacyweb on December 7, 2021.
