The follow-up to the face mask judgement
In January, we informed you of a judgement in summary proceedings in which it was decided that the employer (a patisserie) was entitled to suspend the employment and payment of wages for an employee who refused to wear a face mask in the workplace. Following this judgment, the employer requested the dissolution of the employment contract. This judgment was published on 8 March 2021.
Dissolution of employment contract face mask refuser
The judgement of 8 March 2021 is the follow-up to the summary proceedings in which the court ruled that the employer is entitled to suspend payment of wages as long as the employee does not comply with the employer's instruction to wear a face mask. Subsequently, the employer requested the dissolution of the employment contract principally because of (seriously) culpable actions of the employee. The subdistrict court ruled that the employment contract should be dissolved. A conflict had arisen between the parties and both sides were to blame. However, the subdistrict court rules that it has not been established that the employee contributed to the conflict in such a way that the employment contract should be dissolved due to his (seriously) culpable actions. The subdistrict court makes a distinction between the events before and after the judgment in summary proceedings.
Events prior to summary proceedings: reproaches to both parties
The conflict between the parties started when, just before their vacation, the associates of the employer, without any form of explanation or consultation and without being present themselves, communicated in writing that all personnel were from then on obliged to wear a face mask. Although the choice for the obligation in itself is understandable, according to the subdistrict court, this manner of communication by the employer was unfortunate. Also important is the fact that the obligation to wear face masks was not yet as generally accepted as it was later, when the government started to require face masks in various places. However, the employee can be blamed for not wearing a face mask despite the clear instructions of his employer, without contacting the employer by phone (this possibility was mentioned in the app) and for arguing about it with colleagues. He should not have done that. On the other hand, the employer's associates did not discuss with employee after returning from vacation his reasons for not wanting to wear a face mask and explain their decision to make it mandatory. Instead, they immediately sought confrontation by suspending his payment of wages. As a result, the situation escalated, and the parties became embroiled in litigation back and forth. The subdistrict court therefore rules that with respect to the actions up to the summary proceedings, both parties can be blamed.
Events after judgement in summary proceedings: insufficient effort by the employer to restore mutual relations
After the judgement in summary proceedings, however, the situation changed. In brief, the subdistrict court is of the opinion that the employer has done too little to restore the working relationship after the employee stated that he would wear a face mask from then on. According to the subdistrict court, it is the employer who has caused the conflict to escalate further. The working relationship has become so badly disrupted that the employment contract should be dissolved on that ground.
In addition to the statutory transition payment, the employer must also pay the employee a fair compensation. The subdistrict court considers it important that the employer had, from the beginning, remained indignant about the employee's behavior, without even bothering to enter into a conversation to hear the employee's side of the story or to explain the employer's position. Instead of seeking to resolve the conflict, the employer ensured such further escalation that dissolution of the employment contract became inevitable. The employer did this by (i) making an unrealistic proposal to terminate the employment contract, (ii) refusing to honor the employee's reasonable request for a meeting prior to work resumption and (iii) ceasing to pay the employee in full. In these circumstances, the subdistrict court considers this way of acting to be seriously culpable. However, the subdistrict court did take into account the reasonable chance that the employment contract would have been terminated within the foreseeable future as a result of the faulty communication back and forth and the mutual irritation about it. The subdistrict court therefore considers a fair compensation of € 3,000 gross appropriate.
Is refusal of a face mask in itself a ground for dissolution?
The case ultimately costs the employer dearly, as the employer had to pay the employee a fair compensation in addition to the transition payment. Although the subdistrict court - just like the court in summary proceedings - ruled that the choice to make a face mask compulsory in the workplace was understandable, the employer had not handled the implementation thereof properly. However, the employee is also blamed for not starting to wear a face mask despite the clear instruction. In conclusion, we do not preclude the possibility that the refusal to wear a face mask could also be a ground for termination of the employment contract due to culpable actions on behalf of the employee. In any event, it is important that the employer informs its employees in an adequate manner of the reason for the mandatory use of face masks in the workplace and, in the event that the employee refuses to wear a face mask, enters into discussion with this employee about his/her reasons for refusing to do so.
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