The employer requested the court to terminate the employee’s contract, pursuant to Section 7:671b(1)(a) of the Dutch Civil Code, without awarding any transitional damages, because the employee, a teacher, was seriously culpable in not following employers’ instructions, as she constantly refused to get tested. She considered that the PCR test cannot detect coronavirus and found the obligation to be tested in violation of Articles 10 and 11 of the Constitution, which enshrine the right to physical integrity and respect for privacy.

The after-school childcare center explained that the request was connected to the duty of care to ensure the safest and most responsible environment for children, parents and employees.

On 10 February 2022, the District Court of Amsterdam, first called upon to assess the legitimacy of the employer's request, stated that the employee’s fundamental rights to physical integrity and private life can be restricted under certain circumstances.

According to the Court, the restriction must have a legitimate aim, be necessary (suitable means), be proportionate (relation between aim and infringement) and comply with the subsidiarity requirement (no less drastic means).

• legitimate purpose: in the opinion of the Subdistrict Court, the purpose of the instruction to undergo testing is to reduce the spread of the coronavirus in the workplace and to ensure a safe working environment, both for the employee in question and for her colleagues, the children and their parents. The purpose is therefore legitimate.
• suitable means: the Court also considers the remedy, doing a PCR test, a suitable remedy, as it is currently regarded worldwide, and also by the European Commission and the European Centre for Disease Prevention and Control, as the most reliable test for detecting the presence of the coronavirus.
• proportionality and subsidiarity requirement: the instruction to the employee to undergo a test is proportionate as the coronavirus is highly contagious and, for economic and scheduling reasons, employer cannot be required to allow the teacher to spend ten days in quarantine each time she refuses to be tested.

According to the judge,  the aim of childcare is to create a safe environment for employees and children and this must outweigh the personal objection of the employee. By refusing the PCR test, the employee acted culpably and there were reasonable grounds to dissolve the employment contract.

The Court declared the lawful termination of the employment relationship, even if the teacher is entitled to severance pay and the statutory notice period due to a lower level of seriousness of breach of duty.