Epidemics such as Covid-19 are still lurking. After all, the world population keeps growing (almost 8 billion), and we keep moving closer to the animal world. And if we then keep flying everywhere, a new disease (zoonosis) again spreads quickly. Witness the monkeypox virus. Covid-19 was a period of radical uncertainty, and for entrepreneurs an absolute disaster.

As a corporate lawyer, unfortunately there isn’t much I can do about that, but what I can do is indicate what, from a legal perspective, you as an employer may and may not do in Covid-19-like situations. Based on Covid-19 case law. Those lessons can be very valuable for the future, in which new radical periods of uncertainty are lying in wait.

Lesson 1 – Working from home

There are few (8) rulings on working from home, so it is difficult to spot a common thread here. Because of the Flexible Working Act (Section 2(6) Wfw), there is in any case no absolute right to work from home. The government’s advice (“Work from home as much as possible”) was general government guidance from which an employee cannot derive a right to work from home. The employer will, however, have to ensure a healthy and safe workplace. We do see that reflected in a number of rulings. From the standpoint of being a good employer, the Working Conditions Act, and the Working Conditions Decree, it can be assumed that you cannot ask the employee to come to work if they are able to work from home. This does not detract from the fact that the employer still has the authority to instruct staff to come to the office, but this authority is limited by the condition that there must be a safe and healthy workplace.

A right to work from home has in the meantime been proposed in a bill, but has not yet been passed.

Lesson 2 – Face-mask requirement

In various rulings it has been decided that the employer, on the basis of its right to instruct (Section 7:660 of the Dutch Civil Code), is entitled to impose a face-mask requirement.

It follows from these rulings that the balancing of the employer’s interest in ensuring a healthy and safe workplace (the business interest) against the right to protection of privacy therefore weighs more heavily. This can be different if the employee can demonstrate on medical grounds that they cannot/may not wear a face mask. It is advisable to have a face-mask policy and to take it into account.

If an employee refuses, without a good exception, the appropriate sanction is suspension with a pay stop. Doesn’t that work, and does the employee persistently keep refusing? Then dissolution or summary dismissal is appropriate, depending on the circumstances of the case.

Lesson 3 – Vaccination and testing

What are the possibilities here? Can you, as an employer, require your employees to be tested or vaccinated, and are you allowed to attach employment-law consequences if the employee refuses? The bill “Temporary Act Broadening the Use of Corona Access Passes” did not pass. This bill would have made it possible to use the corona access pass in some cases in the workplace, where necessary to reduce transmission of the coronavirus. For now, therefore, no corona access pass applies at work.

A line can already be very vaguely discerned from case law. Courts agree that there is no general vaccination obligation. That does not fit within an employment relationship. We also see that courts find that an infringement of fundamental rights can sometimes be justified, and that employment-law sanctions can then be imposed. For example, a dancer could not be admitted to work, and no salary was paid. For a group leader/teacher, even dismissal could follow.

Refusing a PCR test, incidentally, was not qualified as seriously culpable conduct or omission. As a result, the employee did retain the right to the transition payment. In general, an employee who refuses to be vaccinated, tested, or to show a corona access pass will not quickly be found to have acted with serious culpability. Such an employee will therefore very probably retain, in the event of a requested dismissal, the right to the transition payment.

Lesson 4 – Social media

The right to freedom of expression, for example in the form of employees’ posts on social media relating to corona and vaccination policy, is not unlimited. That depends on the type of expression, your reach towards the employer’s target audience, the employee’s position, where you work, and the connection made to the employer. The expression can be contrary to being a good employee, or can even amount to (serious) culpable conduct. Most essential is the content and tone of the message.

Messages such as “I am against vaccination” will be less problematic than “this is a penal camp here because vaccination is mandatory.”

Here too, as in corona employment-law case law around vaccination, a personal expression will not quickly be seriously culpable. So even upon dismissal, the employee will readily retain a right to the transition payment.

Lesson 5 – Continued payment of wages

As for continued payment of wages during Covid-19, the line is that if there is suddenly no more work (due to Covid-19 lockdowns), this is for the account of the entrepreneur/employer. This is regarded as business risk under Section 7:628 of the Dutch Civil Code since 1 January 2020.

For on-call workers too, it is the case that you may not simply stop scheduling them in such situations. There, we deal with the statutory legal presumption that the on-call worker can then claim the average wage of the past 3 months.

Precisely because of these statutory risks, the government accommodated businesses through NOW support. Also to prevent employers from otherwise applying en masse for dismissal of their staff. That did not happen, and clearly had a successful effect.

Lesson 6 – Holiday days

The line here is the same as for continued wage payment. Corona is not a ground to force employees to take (e.g. 20%) holiday, or to forfeit it, because they cannot get a return flight, must quarantine, or the business must close due to a lockdown.

Lesson 7 – Negative hours

And registering negative hours due to a lockdown and having them made up later — how does that work? From 1 January 2021, Wibra had scheduled its employees for fewer hours to bridge the effects of the shop closure, and recorded negative hours against employees. The court ruled here that the CAO provision on negative hours, under the CAO’s annual system, may also be applied during the coronavirus pandemic. Making use of NOW subsidies on the one hand and “charging” the registered negative hours to employees on the other does not mean that the employees work wholly or partly “for free”, as the FNV trade union argued. The court likewise did not find this contrary to being a good employer. After all, Wibra had used the NOW subsidies entirely to pay employees’ wages, including during the period they had not worked. That was also the intention of the NOW scheme.

The employer could not force its employees to make up negative hours where the cause of those negative hours was in any case for the account and risk of the employer and no CAO annual system had been laid down in the CAO. This was because the negative hours had arisen due to seasonal closure, as with an ice-cream parlour.

Lesson 8 – Unilateral amendment of employment conditions

Here too, the previous line can be recognised, but with a nuance. A number of courts do genuinely allocate the risk of the pandemic among employees. The rule of thumb here is that as long as it is temporary — i.e. a postponement — or concerns secondary employment conditions or non-employment conditions (such as a roster change), such a change is more readily accepted.

For unilateral amendment of employment conditions (i.e. without the employee’s consent), the bar is high, but there are nonetheless possibilities. For example, there were a number of courts in the Dutch Caribbean that agreed to, among other things, a proposal to adjust salaries because Covid-19 does not automatically fall exclusively within the employer’s sphere of risk. The Rotterdam subdistrict court ruled that the employer had a reasonable ground and a legitimate interest in a temporary removal from a position. Artis Zoo, however, was not backed by the subdistrict court in unilaterally amending a number of employment conditions, because the proposal made by Artis was not reasonable. This concerned a permanent amendment of primary employment conditions, and it had not been sufficiently explained why a temporary sacrifice had not been discussed and was not possible.

For postponing a pay rise, a compelling interest was deemed present because of Covid-19 (for which employees’ interests must yield according to standards of reasonableness and fairness). However, this did not apply to the accrual and mandatory taking of holiday days, given the importance of recovery (recuperation).

An employee who had been promised training, but for whom this was postponed as a result of the coronavirus crisis, claimed fair compensation. The Roermond subdistrict court rejected this because this did not constitute seriously culpable conduct by the employer given the Covid-19 situation.

Due to the decline in passenger numbers as a result of the coronavirus pandemic, drivers’ rosters may be unilaterally amended, the Utrecht subdistrict court ruled. A roster is not an employment condition. Schiphol Airport was also allowed to amend its rostering system. The CNV trade union’s claim to apply the rostering system unchanged was therefore dismissed.

Lesson 9 – Dismissal

The common thread is difficult to spot here in the case law. At best, in connection with the employer’s financial situation, the court sometimes goes along with the employer’s request to pay the transition payment in instalments. Also to reject or reduce the requested fair compensation. It further appears that it can be favourable for employers that, after the UWV has rejected the dismissal, the subdistrict court nevertheless agrees to it. The defence that it is difficult to find a new job due to the coronavirus crisis is taken into account by one court and not by another.

Lesson 10 – Complying with Covid guidelines

Failing to comply, or not properly complying, with the corona guidelines — (RIVM guidelines, the Working Conditions Act and the Working Conditions Decree) by the employer or the employee has led to various proceedings. The bar for the employer to get away with it lies higher than for the employee. The employer’s obligation to provide a healthy and safe workplace has come much more into the spotlight.

For example, Covid-19 led to a temporary new provision in the Working Conditions Decree. Section 3.2a provides that the employer takes timely, necessary measures and provisions to prevent or limit the chance of infection of employees and third parties with SARS-CoV-2 in the workplace. This includes, in any case, observing adequate hygiene provisions, providing effective information, and maintaining adequate oversight of compliance.

Where employers had taken insufficient measures, this led to the finding that a stop on wage payment had been wrongly applied where an employee refused to come to work. It also sometimes led to the conclusion that the employer had acted with serious culpability, resulting in the award of fair compensation.

Employees who did not follow or ignored the guidelines fared better here. Either the dismissal was rejected, or it was granted, but then non-compliance with the corona rules did not amount to serious culpability, so the employee did receive the transition payment.

Questions or advice?

The corporate lawyers of The Legal Company specialise in employment law, corporate law, contract law and privacy law. Do you have questions about the above, or need advice or support? Then contact us by emailing info@thelegalcompany.nl or calling 020-345 0152.

Nothing is as changeable as legislation and regulations. Please note that our blogs may no longer reflect current legislation and regulations and may therefore be outdated. If you have questions or a problem relating to this blog, or wish to obtain legal assistance, please contact us.