Employee refuses face mask - no right to salary
On 13 January 2021, the court in summary proceedings ruled that a Dutch patisserie was entitled to suspend an employee and to suspend payment of wages for this employee because he refuses to wear a face mask in the workplace.
The case on the obligation to wear a face mask
On 13 October 2020, a Dutch patisserie makes it compulsory for all its employees to wear a face mask. One of the employees, unlike his colleagues, refuses to wear a face mask. It concerns a delivery driver who has been working at the patisserie since 2014. This employee transports goods between branches, delivers to customers and collects goods from suppliers. In the transport bus, he is not required to wear a face mask. The face mask obligation only applies to him when he is inside one of the company premises. This amounts to 10% of his total working hours. Even after the employer has urged this employee again to wear a face mask, he continues to refuse to comply with this request. The employer consequently suspends the employee’s salary and puts him on suspension. The employee disagrees and brings the matter to court. He argues that wearing a face mask causes inconvenience, discomfort and health risks and is therefore an invasion of his personal privacy.
The employer's right to issue instructions: face masks as clothing regulations
The patisserie is invoking its right to issue instructions. What does this right entail? Employers are responsible for a healthy and safe working environment. In that context, an employer may unilaterally instruct employees on how they should behave, the so-called right to issue instructions (Article 660 of Book 7 of the Dutch Civil Code). An employer may therefore say: "you work here and as long as you do so, you must wear this". The obligation to wear a face mask can be compared to regulations for safety clothing at work, such as the obligation to wear a helmet on a building site. This type of clothing regulations is therefore covered by the right to issue instructions. Nevertheless, there are limits to this right; making a face mask compulsory must be reasonable. If the instruction right violates a fundamental right of the employee - such as in this case an infringement of personal privacy - the justification for such an infringement must be assessed.
The judgement of the court
The judge weighed the interests of the employee against those of the employer. He found in favour of the employer since there are two legitimate objectives. It concerns a socially accepted means that (i) contributes to the individual interests of the employees and (ii) the business interests of the employer.
- Individual interests of employees
As an employer, the patisserie must protect the individual interests of its employees by providing a healthy and safe working environment. This implies that during the COVID-19 pandemic, the employer is obliged to do what is necessary and within his power to prevent the infection of his employees with the COVID-19-virus in the workplace.
- Business interest
In addition, the employer has a business interest. Since the outbreak of the COVID-19-virus, the patisserie has already lost one thousand production hours due to employees who were unable to work as a result of the COVID-19-virus. In addition, the employer must continue to pay employees in the event of illness and/or quarantine.
A socially accepted means
Although the effectiveness of the face mask is disputed, it is a socially accepted means, according to the judge. Wearing a face mask during the COVID-19 pandemic may contribute to safety and health. The patisserie was also entitled to assume this at the time of giving the instruction, especially because the face mask instruction was given on the advice of the trade association.
Common approach within the company
The employee also argues that there is no necessity to wear a face mask, given his position and the possibility of keeping a distance of 1.5 meters inside the building. The judge does not agree with this argument. The patisserie has an interest in taking the same approach within the company. After all, wearing a face mask can only be effective if everyone inside adheres to it. The employee is part of a working community and is not a solitary employee who can go his own way. Moreover, the invasion of his privacy is already much more limited compared to other employees of the patisserie, as the employee is on the road for 80-90% of his working time and therefore does not need to wear a face mask.
To be continued…
The judge rules that the employer may suspend the payment of wages to this employee and refuse him access to work as long as he refuses to wear a face mask. The judge takes into account that it has not been shown that the employee has medical or psychological limitations that prevent him from wearing a face mask. This case would possibly have had a different outcome if this employee was unable to wear a face mask due to a disability or illness. In the meantime, the employer would have filed a request for termination of the employment agreement. Will the refusal to wear a face mask also be a reasonable ground for termination of the employment agreement? We will keep you informed.
Hermine VoûtePartner Attorney at law
P. Hermine E. Voûte, attorney at law, is member of the Employment & Benefits practice group in the Netherlands and chairwoman of the Diversity & Inclusion committee. She has over 33 years’ all-round experience in employment law, with a particular focus on high-profile dismissals, restructurings and collective dismissals, and co-determination procedures.T: +31 20 578 59 75 E: firstname.lastname@example.org