On 16 July 2021, the first judgment was published regarding summary dismissal for refusing the employee to be vaccinated against Covid-19. It concerned a judgment of the Court of First Instance of Curacao.
What was going on here? The employee worked in a small office space (25 m2) without windows or other ventilation possibilities. 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 (yet) get vaccinated, the employment contract would be terminated. The employee did not comply with the employer's request. She did not get vaccinated and was then summarily dismissed by the employer. Is this justified?
According to the court, the issue in the case is whether an employer can directly or indirectly oblige its employee to be vaccinated against the coronavirus. And whether an employee's refusal to be vaccinated constitutes an urgent reason for instant dismissal.
No general obligation to vaccinate
The judge put first and foremost that there is no such thing as a general obligation to be vaccinated and that this would not fit within the employment relationship. Vaccination affects the employee's fundamental rights, as mentioned above. Employers must respect these fundamental rights. However, an infringement of a fundamental right may be justified under certain circumstances. In that case there must be a legitimate objective, necessity, proportionality and subsidiarity.
Vaccination requirement is a violation of fundamental rights
The immediate dismissal of an employee for refusal to vaccinate constitutes an indirect obligation to vaccinate (vaccination urge), which is an infringement of the employee's fundamental rights.
In the opinion of the court, in the present case there are no circumstances that justify the breach. The risk of contamination was very limited. In addition, there was no consultation with the employee or joint consideration of other possibilities to limit the risk of contamination.
Moreover, summary dismissal is an ultimum remedium. The court therefore concluded that the urge to vaccinate, without a statutory obligation to do so, was such an intrusion into the employee's personal privacy, apart from exceptional circumstances, that it did not constitute an urgent reason for immediate dismissal.
Dissolution of the employment contract due to changed circumstances
Eventually, the employment contract was dissolved due to changed circumstances. According to the judge, the Covid-19 pandemic has put the relations between the parties on edge.
Is refusal of vaccination ground for dismissal?
Without a legal obligation to vaccinate, refusal of vaccination is no reason for immediate dismissal. One question that remains unanswered is whether this would constitute reasonable grounds for termination of the employment contract in the Netherlands. The expectation is that the mere refusal of a vaccination will not be sufficient to terminate the employment contract. However, we will have to wait for the first Dutch court to rule on this.
Would you like to know more about compulsory vaccination or other corona-related employment employment law topics? Please contact one of the employment lawyers at SPEE advocaten & mediation.