This case concerned an employer (a dance company), with whom a dancer had been employed on an indefinite basis since 2017. In October 2021, it was announced in a group discussion that performers must also have a corona safe pass (QR code) in order to enter the theatre. The employee informed the group by email that he did not have the QR code required for the performance. He requested a meeting with his employer.
Ultimately, the employee did dance in the performance in question, as it turned out that the theatre did not actually ask for a QR code from the dancers. The following day, the interview requested by the employee took place, despite the fact that the employee no longer considered this necessary because he could (apparently) perform without a QR code. Following this interview, the employee was requested not to appear at work. After a further email exchange and another interview, the employer informed the employee by letter of the following:
‘We asked that you be tested for the coronavirus if necessary. You do not wish to comply with this request. We respect and regret that. At the same time, we note that you can no longer be deployed as a dancer or in any other way for us as long as there is no prospect of an end to the corona pandemic and the associated measures.’
The measures taken by the employer included a suspension and a wage freeze. As a gesture of goodwill, these measures did not take effect immediately, but from 1 December 2021.
The employer subsequently tightened up policy and protocol, asking everyone to take a self-test provided by the employer once a week. In the event of a positive test result, employees were required to inform their employer, stay at home, and take an official health services (GGD) test.
In summary proceedings, the employee claimed salary and redeployment. He contested his employer’s policy for the following three reasons:
The self-testing requirement and communication of a positive test result to the employer results in a violation of the employee’s privacy and physical integrity. However, the employer has the obligation to ensure a safe working environment.
The question for the court was whether the measures taken by the employer were acceptable.
Did the GDPR apply?
The court acknowledged that there is currently no legal ground (for example in the temporary anti-pandemic provisions) requiring a test before an employee is admitted to work. However, this does not mean that the obligation to test is prohibited, according to the judge. The court ruled that merely having to inform the employer of the result of a test does not fall within the scope of the GDPR. Furthermore, it had not been established that the employer stored employees’ test results in any way, so the GDPR did not apply.
Is a testing requirement a permissible infringement of fundamental rights?
According to the court, the fact that the employee was not always able to keep sufficient distance from his fellow dancers or students during his work as a dancer meant that the employer had no other option than to make regular testing compulsory for the dancers in order to create as safe a situation as possible in the workplace. The employee argued that self-testing as a measure is not suitable for lowering the risk of infection, because self-tests do not work well when the user has cold-like symptoms complaints, referring to a recent study by University Medical Centres (UMC). The judge passed over this but did say that the employer must continue to inform himself about the efficacy of self-tests.
A further consideration was that, given the employee’s prominent role in the company, the employer would have to find an appropriate, available replacement for him, which would be risky for the employer and would require an outlay of time and money. In view of the current coronavirus measures, the employer could not bear the cost of double salary during this period.
Based on these circumstances, the employer’s interest outweighed the employee’s interest in refusing. The infringement was therefore justified in this case.
Was suspension the right response?
The judge considered suspension to be appropriate in this situation. The employer had demonstrated that almost all of the employee’s work involves contact with others at a distance of less than 1.5 metres. Therefore, the employer’s testing policy was reasonable and so was the suspension and wage freeze imposed because the employee refused to comply. In short: the employee must bear the financial consequences of his refusal.
The question whether a (self-)testing obligation may be imposed by every employer cannot be answered in general terms. The circumstances of each individual situation will have to be considered, weighing up whether the employer’s interest in ensuring a safe working environment outweighs the infringement of an employee’s fundamental rights it involves.
You can read the judgement here.