An after-school childcare centre in Amsterdam is allowed to dismiss a teacher who refuses to be PCR-tested for the coronavirus. According to the District Court of Amsterdam, the employee acted culpably by refusing the employer’s instructions to take a PCR test. Although the employer’s instruction constitutes a breach of the teacher’s fundamental rights, the breach is justified under the given circumstances.
The employee has been employed by DONS, an after-school childcare centre, in the position of group teacher since 2016. Due to the coronapandemic, DONS had to close the childcare centre several times. By e-mail, DONS informed its employees about the reopening of the childcare centre, instructing them to get tested if they had any symptoms themselves or if they were in close contact with a person infected with corona.
Due to symptoms herself or close contact with a corona-infected colleague, the employee has twice spent ten days in home quarantine. Each time, she refused to be tested. Among other things, she indicated that a PCR test was unsound and not suitable for determining infection. As the employee systematically refused to follow the instructions of DONS, DONS suspended the employee from work (but continued to pay wages). DONS stated that it had a duty of care to ensure the safest and most responsible environment for the children, parents and employees of DONS.
DONS then requested the court to terminate the employee’s employment contract, because, according to DONS, the employee was seriously culpable in not following DONS’ instructions.
Assessment by the District Court of Amsterdam
The main issue was whether the employee had acted culpably towards DONS by refusing a PCR test and, if so, whether that should lead to termination.
When answering the question of whether the employee acted culpably, conflicting fundamental rights are at stake. On the one hand, these are the fundamental rights that require the DONS to reduce the coronapandemic (protective measures) in the workplace. On the other hand, the measures taken by DONS may restrict the employee’s fundamental rights to physical integrity and private life.
Under certain circumstances, however, a breach of a fundamental right can be justified. The breach must have a legitimate purpose, be necessary, proportional and comply with the subsidiarity requirement.
1. Legitimate purpose
The purpose of DONS’ instructions is to reduce the spread of the coronavirus in the workplace and to ensure a safe working environment. It is important to note that the workplace is a high-risk epidemiological situation and that the employee cannot keep enough distance from her colleagues and children. The purpose of the instruction is therefore legitimate.
The Subdistrict Court also deemed the instructions of DONS – doing a PCR test – a necessary measure. In a judgment of the Court of Appeal of The Hague of 18 May 2021, the suitability of a PCR test was confirmed (ECLI:NL:GHDHA:2021:869).
3. Proportionality and subsidiarity
The court deems the instruction to perform a PCR test a proportionate and subsidiary measure. The coronavirus is highly infectious and it is hard to imagine a less far-reaching means of achieving the same purpose. In addition, the DONS cannot be required to allow the employee to go into quarantine for ten days every time she refuses to undergo a test, on the grounds of commercial and scheduling considerations.
Conclusion by the District Court of Amsterdam
The district court concluded that although DONS’ instruction to require a PCR test in certain situations breaches the right to private life and physical integrity, the breach of this fundamental right is justified in the present circumstances. In the opinion of the district court, the measure of DONS to create a safe (working) environment by means of the instructions outweighs the obligation to undergo a PCR test. By systematically not complying with the reasonable instructions given by DONS, the employee acted culpably. Therefore, the employment contract will be terminated.
Source: Amsterdam District Court, 10 February 2022, ECLI:NL:RBAMS:2022:418