At the end of last year, we wrote that we saw few legal options for employers to require employees to be vaccinated. For the first time, a judge within the Dutch Kingdom has now ruled on the relationship between vaccination and dismissal. The outcome: without a statutory vaccination obligation, an employee’s refusal to vaccinate cannot constitute an urgent reason for summary dismissal.
It concerns an employer who has an office in the World Trade Center, Curaçao, of 25 m² which is without windows or ventilation and in which several colleagues are sitting together. One of the employees is told by the employer that if she does not have herself vaccinated, the associated COVID-19 risk for the small office is too great to be able to continue working together. Working from home is not an option according to the employer. The employee does not allow herself to be vaccinated and the employer then decides to summarily dismiss her ‘with pain in my heart’.
No legal vaccination obligation
The court in Curaçao rules that a general vaccination obligation does not exist and such obligations also do not fit within the employment relationship. After all, vaccination affects the fundamental right of citizens to inviolability of the human body and the right to respect for privacy. However, an infringement of a fundamental right by the employer may be justified under certain circumstances. But this employer does not meet that requirement.
Which elements play a role?
The employer has the legal obligation to protect its employees and third parties in the workplace as much as possible against a COVID-19 infection.
In this case, there is an indirect obligation to vaccinate (vaccination pressure) because the employer had attached the sanction of dismissal to the refusal of the employee to be vaccinated.
There is no justification for this infringement of the fundamental right. For example, there was only a very limited risk of COVID-19 contamination because the office was only open a few hours a day and no third parties were present. There has also been no consultation at all with the employee about other work options.
Summary dismissal is the ultimate sanction under employment law, the judge emphasises. And the urge to vaccinate, without a statutory vaccination obligation, constitutes too great an invasion of privacy. In these circumstances, refusing to be vaccinated cannot be a reason for summary dismissal.
Dissolution of employment contract
The COVID-19 pandemic has meanwhile sharpened the relationship. The employee’s right to respect for privacy and physical integrity may be at odds with the employer’s interest in protecting itself, its employees and third parties in the workplace against contamination. Together with a few other circumstances, the Curaçao court does see a reason for dissolution of the employment contract.
Translation to Dutch situation
My estimation is that in such a situation a Dutch judge will come to the same conclusion, namely that there is no justification for the urge to vaccinate and that the summary dismissal is invalid. Whether the less far-reaching sanction of dissolution would be pronounced by a Dutch court depends on all other circumstances.
If you have any questions about mandatory vaccination and discharge, please do not hesitate to contact me.