A pharmacist's assistant in a hospital has a problem with her religious beliefs when, at some point, she is no longer allowed to wear long sleeves because of the hygiene in her workplace. As the employee refused to leave her forearms uncovered, her employer asked the subdistrict court to dissolve the employment contract.

Facts

The case concerns a pharmacist's assistant in a hospital who has been employed since 1 May 2013. Part of her employment contract is that she complies with the hospital's dress and hygiene regulations. However, those regulations have become stricter over time, with a view to infection prevention. This means that at some point the hospital started requiring the employee to keep her forearms uncovered and therefore to wear short sleeves at her workplace. During the first years of her employment, the employee did have permission to cover her forearms due to her religious beliefs.

As the hospital and the pharmacist's assistant could not reach a mutually acceptable solution, the hospital ultimately went to the subdistrict court to request termination of the employment contract.

Judgment of the Subdistrict Court / verification against the Awgb

The Subdistrict Court indicated that the question at issue was whether the employer could reasonably be required to allow the employment contract with the employee to continue, given that, due to her religious beliefs, she could only work with long sleeves and was unable and unwilling to comply with the dress code requirement. The parties disputed in particular whether the hospital made a prohibited distinction on the basis of religion, within the meaning of Article 5 of the Algemene Wet Gelijke Behandeling (General Law on Equal Treatment, Awgb), by requiring the employee to work with short sleeves.

After all, pursuant to Section 2 and 5 of the Awgb, making an indirect distinction (in terms of employment conditions or termination of an employment relationship) is prohibited, unless that distinction is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The aim of the clothing requirement imposed by the hospital is to prevent healthcare-associated infections in patients and hospital staff by limiting the chance of transmitting pathogenic microorganisms as much as possible. This is a legitimate aim, especially considering the adverse health consequences of hospital bacteria and the special vulnerability of many hospital patients. It has not been argued or shown that the hospital has (had) any discriminatory intentions. The conclusion from the above is that the indirect distinction made by the employer is objectively justified. There is no forbidden distinction.

The fact that this employee cannot and does not want to work with short sleeves for religious reasons, as demanded by the hospital, does not stand in the way of a dissolution of the employment contract of the parties. Not all grounds for dissolution will be explored, since it can be concluded that the f-ground (conscientious objection) is sufficient and justifies dissolution of the employment contract.

There is a serious conscientious objection within the meaning of Section 7:669 subsection 3 under f of the BW if the employee is in a state of conscientious objection if, in the performance of his duties, he is forced to do or refrain from doing things that are not in accordance with his personal values and standards. These may, as in this case, be of religious origin. It is therefore a question of whether the work can be done in an appropriate form. This question is the same as the one concerning the necessity of the remedy (the dress code) when assessing the objective justification for the indirect distinction made by the hospital.

According to the Subdistrict Court, the work cannot be performed in an adjusted form. In consultation with the seven pharmacist's assistants involved, the hospital has investigated whether there is a possibility to serve the purpose of optimal infection prevention while continuing to perform their work with covered underarms. There appeared to be no such possibility and the employee did not mention it in these proceedings either. The Subdistrict Court dissolved the employment contract between the parties and awarded a transitional allowance to the employee.

You can read the full judgment here.

Are you an employee or employer and do you have questions about the dissolution of an employment contract, on the grounds of conscientious objection or another ground for dismissal (for example, dysfunction or a disturbed working relationship)? The team of SPEE advocaten and mediation has the knowledge and experience to advise you optimally.