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Clashing fundamental rights in KLM labour dispute

Can the KLM reject an applicant for a job as a pilot or stewardess if they refuse to get vaccinated against Covid-19? Or put more broadly: can the employer of a new employee demand that they are vaccinated? Those questions were at the centre of court proceedings brought on Thursday by the Dutch Airline Pilots Association (Vereniging Nederlandse Verkeersvliegers (VNV)) against the KLM. The pilots’ union wants the KLM to remove the requirement that pilots are vaccinated.

The Amsterdam court must weigh up conflicting fundamental rights, say labour lawyers. On the one hand, the European Convention on Human Rights protects personal privacy and the Dutch Constitution recognises the right to physical integrity. On the other hand, it follows from the fundamental right to health that employers must offer their staff a healthy and safe working environment.

It is not so that these fundamental rights can never be restricted, wrote labour law scholars from Leiden University recently in an opinion piece in Dutch journal ArbeidsRecht. An employer may ask an employee for proof of vaccination, as long as this is done with good reason. The Leiden Law School scholars recommend that it is ‘explicitly included in the law that employers may ask their employees for proof of vaccination or a negative test plus the criteria for doing so’.

It must now be determined by the Amsterdam court whether KLM’s argument that new employees must be vaccinated in order to be able to work at all destinations with travel restrictions is a good reason for a vaccination requirement. The court ruling is expected in two to three weeks.

Read the full article in Dutch newspaper NRC

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