The Court in Amsterdam recently rendered a decision regarding the following.
In answering the question of whether the employee acted culpably, conflicting fundamental rights are at stake. These are the fundamental rights that require the reduction of the corona pandemic and therefore the taking of protective measures, which measures were implemented by the employee on the work floor.
On the other hand, the introduction of measures by an employer in the workplace may also limit fundamental rights of an employee.
According to established case law, under certain circumstances an infringement of a fundamental right is justified, also in the employment relationship. The restriction must have a legitimate purpose, be necessary, be proportional and meet the subsidiarity requirement.
The purpose of the employer’s instruction to the employee to get tested is to reduce the spread of the coronavirus in the workplace and thus to ensure a safe working environment. It is inherent in the employee’s work that she cannot keep sufficient distance from her colleagues and certainly not from the children. The purpose of the instruction is therefore legitimate.
Photo: Mufid Majnun on Unsplash.
The Court also considers the remedy, doing a PCR test, to be an appropriate remedy and referred to a decision by the Court of Appeal of The Hague. The PCR test is currently considered worldwide to be the most reliable test for demonstrating the presence of coronavirus.
The instruction to the employee to get tested, in addition to the normal safety rules applicable at the employee, can be considered proportional. The coronavirus is highly contagious and a less far-reaching means of achieving the same goal was not mentioned by the employer.
The employee argued that she chose not to get tested but to quarantine in the situations referred to by the employer. However, on the basis of, inter alia, business and scheduling reasons, the employer cannot be required to allow the employee to go into quarantine for ten days each time she refuses to be tested. Moreover, there is a reasonable chance that the employee will go into quarantine unnecessarily, thereby also requiring third parties, including other employees, children and parents, to go into quarantine unnecessarily. To that extent, the measure is also proportionate.
The Court concluded that although the employer’s instruction to require the employee to undergo a PCR test in certain situations infringes her right to respect for privacy and the right to inviolability of the body, it is reasonable because the aforementioned conditions for restricting her fundamental rights have been met. In the opinion of the Court, the employer’s goal of creating a safe (working) environment through the instruction outweighs the employee’s objection.
ECLI:NL:RBAMS:2022:418
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