The pharmacy assistant had worked at a hospital pharmacy since May 2013. In the early years of her employment, she was allowed to keep her forearms covered at work due to her religious beliefs. At a certain point, the employer decided, based on evolving insight, that pharmacy assistants’ forearms also needed to be uncovered for infection-prevention purposes. It was relevant that the employee had frequent patient contact, and that the inspectorate was enforcing stricter oversight.
From 1 December 2020, the employer no longer allowed the employee to work, though she remained entitled to her wages. In March 2021, two experts confirmed that it was indeed important for a pharmacy assistant’s forearms to be uncovered. The employer saw no way to adapt the work so she could perform it with covered arms, and proposed ending the employment contract, which the employee refused. The employer then unsuccessfully looked for redeployment options. The employee rejected the role of administrative assistant (where long sleeves were permitted) and was also unwilling to cooperate with external redeployment.
The employer asked the court to dissolve the employment contract, relying, among other things, on serious conscientious objections (the “f-ground”).
The subdistrict court’s ruling
Prohibited distinction?
The first question was whether the employer’s dress-code requirement amounted to a prohibited distinction on grounds of religion (Section 5 of the General Equal Treatment Act). There was indirect distinction. Such a distinction is prohibited unless the aim is legitimate and the measures are appropriate and necessary.
In the subdistrict court’s view, there was a legitimate aim, since vulnerable patients in the hospital must be protected against infection. The requirement of uncovered forearms was also sufficiently supported by scientific evidence. The measure was appropriate. The fact that the employee had previously been allowed to work with long sleeves, but no longer could, was due to evolving insight in infection prevention. Moreover, the dress-code requirement could be regarded as necessary, since there was no other way to achieve the aim. The employer could also not be required to accommodate the employee working from home – the fact that this had been possible during the coronavirus pandemic was not relevant, since that was a temporary emergency situation.
Dissolution
The subdistrict court established that all requirements for the “serious conscientious objections” ground for dissolution were met.
A serious conscientious objection exists where an employee experiences genuine moral distress at being forced, in her work, to do or refrain from doing things that conflict with her personal values and norms – which can, for example, relate to religion, as in this case. What matters is that the agreed work cannot be carried out in an adapted form. The subdistrict court ruled that this was the case here, so there was a reasonable ground for dismissal.
Redeployment efforts
The employer had also made sufficient efforts to redeploy the employee.
No serious culpability on the employee’s part, and freedom to choose work
The employee was entitled to the transition payment, since there was no serious culpability on her part. Given her right to freely choose her work, she had a certain degree of freedom in refusing or accepting an offered role.
For the full ruling, click here (in Dutch).
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
