Dutch Airline Pilots Association (VNV) Successfully Blocks Mandated Jabs For New Pilots
The judge ruled in favour of the Dutch Airline Pilots Association (VNV). This means that KLM may no longer ask new pilots about their vaccination status against COVID-19 and/or reject them for this reason, risking a fine of EUR 100,000 per violation.
Below is online translation from Dutch to English from VNV :
Lawsuit against compulsory vaccination won
Thu 02 Jun 2022
— PRESS RELEASE
— KLM
The VNV is pleased with the decision of the Amsterdam court that immediately prohibits KLM from asking candidate pilots about their vaccination status and using this to reject candidates. The VNV endorses the government's position that vaccination is important, but that compulsory vaccination by the employer is not permitted. We were of the opinion that KLM did not comply with this and, moreover, violated our agreements about this, without there being any operational necessity.
Today, the judge ruled in preliminary relief proceedings that the infringement of the fundamental rights of candidates committed by KLM's conduct in the application procedure is disproportionate, because KLM has not been able to demonstrate that there is an operational necessity. The judge says about this: “The importance of KLM to finalize its planning with due observance of the collective labor agreement and to organize its business operations as well as possible is also present, but does not weigh as heavily as the rights of the candidate pilots. . This is all the more true now that VNV has argued that there are alternatives that the candidate pilots and many of the pilots already working at KLM want to participate in, such as conducting (per) tests, which can also achieve the goal of effective planning. become."
Under penalty of a penalty of EUR 100,000 per violation, the court has immediately prohibited KLM from collecting and/or using information in any way about the vaccination status against COVID-19 and/or rejecting candidates because they indicate that they are not have been vaccinated and/or do not want to have a vaccination. If KLM can demonstrate that operational problems will arise in the future due to travel restrictions for its personnel, the VNV is always prepared to look for solutions that do not disproportionately infringe on its (candidate) pilots.
Court ruling also online translated from Dutch to English :
ECLI:NL:RBAMS:2022:3029
Body Court of Amsterdam Date of judgment02-06-2022 Date of publication 02-06-2022 Case number 9827224 KK EXPL 22-246 Jurisdictions Civil rights Special characteristics summary proceedings Content indication
KLM is not allowed to ask candidate pilots about vaccination
LocationsRechtspraak.nl Case
law HSE 2022/42
AR-Updates.nl 2022-0604
XpertHR.nl 2022-20007950Enhanced pronunciationPronunciation
COURT OF AMSTERDAM
Department of private law
case number: 9827224 KK EXPL 22-246
verdict of: June 2, 2022
function: 33494
judgment of the subdistrict court in summary proceedings
about
the association of the Dutch Airline Pilots Association
located in Badhoevedorp
plaintiff
hereinafter referred to as: VNV
authorized representative: mr. A. Stege
against
the public limited company Koninklijke Luchtvaart Maatschappij NV
located in Amstelveen
defendant
hereinafter referred to as: KLM
authorized representative: mrs. JM van Slooten and TO Boot
COURSE OF THE PROCEDURE
By summons of 26 April 2022, with exhibits, VNV claimed a provision. This summons was not issued because KLM has indicated that it will appear voluntarily, which it has done.
The oral hearing took place on 19 May 2022. [name 1], [name 2], [name 3] and [name 4] appeared before VNV, accompanied by the authorized representative. [Name 5] , [name 6] , [name 7] and [name 8] , also accompanied by the authorized representatives, appeared before KLM. KLM and VNV have submitted (further) documents in advance. During the hearing, the parties explained their positions and answered questions from the sub-district court.
After further debate, a verdict was requested and a date for verdict was set.
GROUNDS FOR THE DECISION
Assumptions
1. The following applies as a starting point.
1.1.
VNV is a trade association that, among other things, promotes the interests of pilots who are employed by KLM. She also represents the interests of members who are candidates to join KLM, for example.
1.2.
KLM currently employs more than 3,000 pilots. These can be divided into the categories captain, first officer and second officer. There are also differences within those functions, namely which pilot is allowed to fly on which aircraft type (for example Boeing 737 or Airbus A330). Retraining to another aircraft type generally takes 3 months.
1.3.
KLM has a Vademecum for Flying Personnel, which includes its policy on vaccinations:
Vaccinations
Crew is vaccinated free of charge at KLM Health Services against yellow fever, typhoid fever, diphtheria, tetanus & poliomyelitis (DTP) and hepatitis A. Repeating vaccinations in time falls under own responsibility. It is not allowed to fly within 24 hours of a vaccination. For cockpit crew it is possible to get the vaccinations on the day of the medical examination. There are countries that make certain vaccinations mandatory. Crew must carry the vaccination booklet with them on every flight.1.4.
Agreements have been made about the corona restrictions in a protocol to the collective labor agreement:
f. KLM and the VNV will closely monitor developments regarding corona, corona tests and the corona vaccine. Both testing and vaccination take place on a voluntary basis only. If this is at the expense of the total deployability of the air force and/or the ability to operate the KLM network, KLM and the VNV will enter into consultation.1.5.
The pilots who are eligible for employment with KLM have completed their training at the KFA (KLM Flight Academy). Before a future pilot is hired at the KFA, he or she has actually already had the job interview. As soon as places are created, KLM will contact the graduates, in order of the list. They then conduct a 'let's connect' conversation.
1.6.
During the corona pandemic, KLM did not take on any new pilots for some time. There are now about 50 places available again and KLM has started approaching future pilots again. The Coordinator of the Recruitment Flight Crew with a focus on Flight Operations, mrs. [name 9] , together with the Pilot Recruitment Manager, is responsible for recruiting cockpit crew. She has stated the following about the 'let's connect' conversations with these potential pilots:
After the influx of new pilots has come to a standstill for a long time, these talks were intended to re-establish contact with the waiting list candidates and to inform them that KLM expects an influx of new pilots. Matters such as notice period, validity of certificates/medical examination, availability, what a candidate had done during the Corona period, etc. were discussed. It was also discussed that people should be able to fly the entire KLM network. In the majority of the interviews, the candidates immediately indicated that they are fully vaccinated. In a single interview, the question was actually asked whether a candidate has been fully vaccinated. No candidate has indicated that they are not fully vaccinated or unwilling to do so.
If a candidate had indicated that he had not been fully vaccinated or was not prepared to do so, or had not wished to answer the question whether the candidate has been fully vaccinated, this would have been a reason not to offer the relevant candidate an appointment as a pilot at KLM. because the candidate cannot fly to every destination. This is in accordance with the always applicable KLM policy. In such a case, we do not record anything about this and the candidate is simply removed from the waiting list. However, this has not been the case.
Nothing has been recorded and/or registered about the vaccination status of candidates.1.7.
During the corona pandemic, the number of pilots with a travel restriction has so far increased by 30% to 800. A travel restriction means that a pilot is not allowed to fly to a destination or, for example, not at night. The (medical) travel restrictions are handled by the company doctor, KLM Health Services (KHS).
1.8.
Pilots who, because they are not vaccinated or do not (want to) test, cannot fly to a destination where corona restrictions apply can apply for such a travel restriction via KHS. When planning, KLM only sees that there is a restriction and not whether the pilot has been vaccinated or not.
1.9.
KLM does not require a corona vaccination from its current pilots.
1.10.
On March 10, 2022, a candidate pilot sent an email to VNV with the title 'compulsory vaccination for future KLM pilots'. In this e-mail, the candidate pilot informed VNV that KLM is asking about the vaccination status of the candidates, and that the candidate pilot feels compelled to get the vaccinations in order to secure himself a job, where he/she she is very unhappy and causes him/her mental complaints.
1.11.
The subsequent correspondence between the parties shows, among other things, that KLM takes the position that the agreements made between VNV and KLM only apply to employees of KLM and not to prospective employees, and that KLM (already before corona) made an assumption requirement. that an applicant for the position of pilot must be deployable at all destinations of the KLM network. Furthermore, KLM has not complied with the request from VNV to confirm that it will refrain from obtaining information about the vaccination status against corona of candidate pilots.
Claim
2. VNV claims by judgment, provisionally enforceable to the extent possible:
2.1.
to prohibit KLM with immediate effect from obtaining and/or using information from candidate pilots about the vaccination status against corona and/or to reject candidates because they indicate that they have not been vaccinated and/or do not want to take a vaccination;
2.2.
order KLM to pay a penalty of € 100,000 for each violation of this prohibition;
2.3.
Order KLM to unconditionally re-examine the applications of candidates they have rejected because they have not confirmed that they have been vaccinated against corona within 2 days of service of this judgment and to inform them accordingly within that period, and to inform them of the vaccination status in the completely disregard any further application process;
2.4.
order KLM to pay a penalty of €100,000 for each violation of this injunction;
2.5.
order KLM to pay the costs of the proceedings.
3. To this end, VNV states that KLM is acting in violation of the General Data Protection Regulation (GDPR) and the Medical Examination Act (WMK). In addition, KLM's conduct makes an unauthorized distinction based on vaccination status against corona between pilots already employed and new pilots, now that no vaccination obligation applies to employed pilots. In addition, pursuant to Article 11 of the Constitution and Article 8 of the ECHR, an employer may not impose a vaccination obligation on employees because of the inviolability of the human body and the right to self-determination of every person with regard to physical integrity. By asking the candidate pilots this question and rejecting them if they answer this unauthorized question negatively, KLM is de facto imposing a vaccination obligation on (new) employees.
defense
4. KLM argues that it is entitled to ask whether the pilots can be deployed at all destinations. KLM is not prohibited by any legal provision or principle of law. The question does not conflict with the AAVG, nor with the WMK and nothing is recorded about the vaccination status. Furthermore, it must ask the question because if it does not do this, its business operations will be in serious trouble. KLM cannot afford to hire candidates who are limited in their employability due to the lack of a vaccination against corona.
5. Furthermore, asking about employability does not infringe the fundamental rights of the candidate pilots, as there is no question of any form of compulsory vaccination. As an employer, KLM may set employability requirements in its hiring policy in order to assess whether a candidate is suitable. The candidate is free to determine whether he wishes to agree to those requirements. A candidate pilot can simply work for another airline, even if the candidate has followed a course at the KFA. KLM respects that pilots who were already employed before Covid are discussing this new vaccine, but that should not apply to new pilots.
6. There is also no question of unequal treatment of candidate pilots and pilots, according to KLM. All candidate pilots are treated the same and candidate pilots are not equal to pilots who are already employed by KLM.
Rating
7. In these preliminary relief proceedings, it must be assessed whether the circumstances that can be considered plausible in this case require a disciplinary measure or whether VNV's claim in proceedings on the merits has such a chance of success that it is justified to anticipate its award by making a provision as claimed. The following therefore constitutes no more than a provisional judgment on the dispute between the parties.
8. The core of the dispute is whether KLM may ask new pilots whether they have been vaccinated against corona and, in the event of a negative answer or the lack of an answer to this question, may remove the new pilot from the recruitment procedure. KLM argues that it only asks whether the pilots are fully deployable, of which a vaccination against corona is part, according to KLM. Leaving aside the fact that KLM directly asks about the vaccination status, when asking about full employability, the question is actually also asked about the vaccination status. By immediately terminating the application if the answer to the question whether the candidate pilot has been vaccinated or wants to be vaccinated is not forthcoming or is negative, she may put candidate pilots under pressure to proceed with vaccination (after all). After all, without vaccination there is no job at KLM,
9. It is considered that requesting and demanding a vaccination against corona constitutes an unjustified infringement of the fundamental rights of the candidate pilots, in particular it infringes the privacy of Article 8 ECHR. To this end, the following is considered.
10. By requesting a vaccination against corona, KLM is infringing the privacy (Article 8 ECHR) of the candidate pilots. After all, the decision whether or not to have yourself vaccinated is something that belongs pre-eminently to this private sphere. Requiring the candidate pilot to be vaccinated and to give a positive answer to that question about vaccination status therefore infringes this. KLM thus leaves candidate pilots who want to join KLM's service no choice.
11. Such infringement may be justified under certain circumstances. The legitimate aim must be examined, whether the means to achieve that aim are suitable, and whether the criterion of proportionality and subsidiarity is met:When answering the question whether such an infringement is justified, it is necessary to examine whether the infringing act serves a legitimate aim and whether it is an appropriate means to achieve that aim (the necessity criterion); it must also be examined whether the infringement of the employee's privacy is proportionate in relation to the employer's interest in achieving the intended aim (the proportionality criterion), and whether the employer could reasonably have achieved that aim in a less intrusive manner. (the subsidiarity criterion) ”. (ECLI:NL:HR:2007:BA5802, [party] )
12. In short, the goal that KLM wishes to achieve by requiring candidate pilots to have a corona vaccination is that KLM, with due observance of the collective labor agreement agreements and taking into account the travel restrictions of the pilots already in service, will schedule can keep getting the kites around. For the time being, the Subdistrict Court is of the opinion that this could be regarded as a legitimate aim. That goal may also be achieved with the measure applied by KLM, namely by requiring future pilots to be vaccinated. However, this measure does not prevent the candidate pilots from having a travel restriction at any time after taking up employment. This can be for a completely different (medical) reason or because the corona measures are changing, But the vision of a pilot on the corona vaccinations can also change after they have entered service and the pilot still waives new necessary vaccinations against corona. Even if the means are suitable for achieving KLM's intended aim, which has by no means become plausible in these proceedings, it is provisionally considered that it has not been sufficiently plausible that the means are proportionate and it has also not become plausible that the requirements have been met. the subsidiarity requirement. To this end, the following is considered. the provisional opinion is that it has not become sufficiently plausible that the means is proportional, nor has it become plausible that the subsidiarity requirement has been met. To this end, the following is considered. the provisional opinion is that it has not become sufficiently plausible that the means is proportional, nor has it become plausible that the subsidiarity requirement has been met. To this end, the following is considered.
12. It is obvious that the interests of the candidate pilots in the present case are great, now that they concern an invasion of privacy. The importance of KLM to complete its planning with due observance of the collective labor agreement and to organize its business operations as well as possible is also present, but does not weigh as heavily as these rights of the candidate pilots. This is all the more true now that VNV has argued that there are alternatives that the candidate pilots and many of the pilots already working at KLM would like to participate in, such as conducting (PCR) tests, with which the goal of an effective planning can also be achieved. become. VNV also adequately explained at the hearing that the way in which KLM currently defined the travel restrictions for existing pilots also can be significantly improved in consultation with VNV, so that the identified problem can be solved in the planning. In the light of the foregoing, KLM has not made it sufficiently plausible that if it takes on a few candidate pilots who have not been vaccinated, it will run into such problems on a workforce of more than 3000 pilots that it will no longer be able to complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain. so that the identified problem can be solved in the planning. In the light of the foregoing, KLM has not made it sufficiently plausible that if it takes on a few candidate pilots who have not been vaccinated, it will run into such problems on a workforce of more than 3000 pilots that it will no longer be able to complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain. so that the identified problem can be solved in the planning. In the light of the foregoing, KLM has not made it sufficiently plausible that if it takes on a few candidate pilots who have not been vaccinated, it will run into such problems on a workforce of more than 3000 pilots that it will no longer be able to complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain. In the light of the foregoing, KLM has not made it sufficiently plausible that if it takes on a few candidate pilots who have not been vaccinated, it will run into such problems on a workforce of more than 3000 pilots that it will no longer be able to complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain. In the light of the foregoing, KLM has not made it sufficiently plausible that if it takes on a few candidate pilots who have not been vaccinated, it will run into such problems on a workforce of more than 3000 pilots that it will no longer be able to complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain. on a workforce of more than 3000 pilots gets into so much trouble that they can no longer complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain. on a workforce of more than 3000 pilots gets into so much trouble that they can no longer complete the planning. In addition, as already considered above, the vaccination requirement does not mean that candidate pilots cannot still have a travel restriction due to corona in the future, both because the pilots can change their mind after taking up employment or reasons arise for possible future vaccinations anyway, and because future measures are uncertain.
14. The foregoing leads to the conclusion that it has not become sufficiently plausible for the time being that the judge on the merits will come to the conclusion that the measure taken by KLM is proportional and that the objective intended by KLM cannot be achieved in any other way. KLM is thus infringing the rights of candidate pilots unjustly. This means that VNV's claim to – in short – forbid KLM to ask for the vaccination status of candidate pilots can be granted, as can the penalty imposed on it.
15. In view of the foregoing, what has been stated by VNV regarding the AVG and WMK does not need to be discussed.
16. The claim to order KLM to still approach the rejected candidates will be rejected. KLM has argued that it has not rejected any candidate because of not having or not wanting to take the corona vaccinations, which has not been disputed (with reasons) by VNV. Consequently, VNV has no interest in this part of its claims.
17. KLM, as the largely unsuccessful party, must be charged with the costs of the proceedings.
DECISION
The subdistrict court judge:
With immediate effect, KLM prohibits KLM from obtaining and/or using information in any way about the vaccination status against COVID-19 and/or rejecting candidates for vacancies for the position of a pilot and/or rejecting candidates because they indicate that they have not been vaccinated and/ or do not want to take a vaccination, on pain of a penalty of € 100,000.00 per violation;
orders KLM to pay the costs of the proceedings, estimated to date on the part of VNV at:
salary € 996.00
court fee € 128.00
-----------------
total € 1124 .00
where applicable, including VAT;orders KLM to pay the costs incurred after this judgment, estimated at € 124.00 in attorney's salary, including VAT if applicable;
declares the convictions provisionally enforceable;
rejects the more or otherwise advanced.
This judgment was rendered by mr. E. Pennink, subdistrict court judge, and pronounced in public on 2 June 2022 in the presence of the clerk of the court.
Source :
https://www.vnv.nl/nieuws/rechtszaak-tegen-vaccinatieplicht-gewonnen
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2022:3029
