The Corona Top 6 of Employment Law
Two Years of Corona. What Can We Learn From It for HR Practice?
Yesterday marked exactly two years since the first COVID-19 allocation in the Netherlands was established. The coronavirus crisis has also posed the necessary challenges for employers, with countless new questions and dilemmas that they had not previously had to deal with. Sometimes the discussions with employees escalated so much that the judge had to weigh in on them.
What conclusions can we draw from this for HR practice? With the six most eye-catching statements, we lay them out for you.
When is there (no) entitlement to wages during corona?
If an employee refuses to perform temporary replacement work in connection with the coronavirus measures, then the employee has no right to pay for the period during which the employee refuses to perform the work, as follows from the judgment of the Amsterdam kantonrechter.
This was about an employee who normally works as a waiter, but could not do this job because of the restaurant's closure. The employer therefore orders him to perform delivery services. He refuses to do this, whereupon the employer suspends the wages.
The judge then ruled that this was justified. The employee, being a good employee, should have accepted the proposal for a temporary change of the position.
Is there a right to work from home?
The government's advice to work from home as much as possible does not create an absolute right to teleworking, so ruled the cantonal judge Nijmegen.
The employee may not work from home on their own initiative, solely because there is fear of infection with the coronavirus. After weighing the interests, the request to work from home could be reasonable in some cases, for example if the employee faces serious health risks at the workplace and you as the employer have not taken, or cannot take, sufficient measures against it.
Are you allowed to dismiss an employee if he refuses to go home with complaints?
You may instruct employees to stay at home if they have corona-related symptoms. Not following this instruction can even lead to dismissal if there is more going on, as appears from the ruling of the cantonal judge Rotterdam.
In this case, an employee with cold symptoms refused to go home despite several colleagues having advised him to do so. The next day the employee reports sick, and two days later it turns out that he has tested positive.
The judge ruled that there was a breach of trust and terminated the employment contract due to a strained working relationship.
Can an employee be dismissed who travels to an orange area?
From Cantonal judge of Limburg ruled in the affirmative, but then the employee must make it clear that he could no longer afford to make a misstep.
This involved an employee who had been dismissed on the spot after he, with a final official warning in his pocket—despite the employer's prohibition—left for Poland and did not appear before the company doctor. The employer had forbidden this, because the employee would not be able to reintegrate from his disability abroad. After all, he would have to quarantine in both Poland and the Netherlands, and working from home in his position was not possible.
All in all, a sufficiently urgent reason for an immediate dismissal, according to the Limburg cantonal judge.
Can an employee who refuses to be tested for the coronavirus lead to dismissal?
Yes, under conditions and as a last resort this is sometimes possible, so ruled the cantonal judge Amsterdam recently
In that case, it concerned a group teacher at an after-school care program who refused to undergo a PCR test. Her employer had given her a test instruction in case of symptoms or after close contact with an infected person. The female employee, however, was convinced that the PCR test could not detect corona. Because she refused to take the test, the employee had to quarantine for ten days on several occasions. That caused scheduling problems, safety concerns and a lot of hassle for the employer.
After a period of suspension and two warnings, it was enough, and the judge ruled that the female employee could be dismissed for culpable conduct. In this case, the employer's aim to create a safe environment by issuing a test instruction outweighed the employee's objection to undergoing a test. Because she had not acted in a seriously blameworthy manner, she did receive a transition payment.
Earlier, judges also accepted a suspension for refusing a weekly COVID-19 test and a dismissal due to a fraudulent COVID-19 test certificate.
Can an employee who speaks critically about his employer's handling of the coronavirus lead to dismissal?
That too is possible under special circumstances, as is evident from the ruling of the cantonal judge in Tilburg.
This was about an ICU nurse who, at his own request, agreed to be interviewed about the COVID-19 policy in the hospital where he worked.
In the interview he spoke negatively and inaccurately about treatment methods and colleagues, and he discussed the situations of specific patients. This was subsequently spread via the Internet. The employee had already been warned earlier to comply with the internal code of conduct for social media.
The judge ruled that many statements did not go too far and that it had not been shown that the hospital had suffered damage. However, because the employee had breached his duty of confidentiality and had not given sufficient consideration to the interests of patients and their relatives, colleagues and the employer, the cantonal court ultimately granted the dismissal request for culpable conduct.
Because his intent was not malicious and there was nothing to fault in his work, the employee did retain the right to the transition payment.
