By Jan Dop & Priscilla de Leede
What rights does the works council have in relation to measures against the coronavirus within the company? And what role does the works council play with regard to the (im)possibility of mandatory vaccination against the coronavirus?
Role of the works council
One of the roles of the works council is to represent the interests of the people working at the company. The works council has various rights and duties to fulfil this role. For example, the works council has the right of consent with respect to regulations on working conditions and privacy. What does this mean if the employer wants to take measures against the coronavirus? To what information on the coronavirus policy within the company does the works council have a right? Does the works council have a duty of care in this area?
COVID-19 measures and the works council
The works council has the right of consent with regard to the coronavirus policy within the company. The employer cannot implement such a policy without the consent of the works council. Therefore, the works council plays an important role here.
Duty of care of the employer
Pursuant to the Working Conditions Act, the employer must ensure the health and safety of the employees. In addition, the employer must record in a risk inventory and evaluation (RI&E) the risks to which employees are exposed when performing work. Finally, the employer must draw up an action plan. This includes the measures to be taken in respect of these risks.
Coronavirus infection can be transmitted in every company. This poses a risk to the health of the employees. Therefore, the employer is obliged to draw up a policy in this respect. This could include the provision of hygiene products or instructions to wear face masks in busy areas.
Consent and initiative of the works council
If in the opinion of the works council the employer does not take sufficient measures to guarantee the safety of the employees with regard to the coronavirus, it can withhold its consent to the coronavirus policy. The works council may do so, for instance, if the employer’s coronavirus policy is not in line with the government regulations. The works council’s duty of care is meant to promote compliance with the regulations that apply to the company in the field of working conditions. To this end, the works council can make use of the right of initiative. This allows the works council to propose its own ideas to the employer regarding the implementation of a coronavirus policy.
Works council and mandatory vaccinations
Another example of a measure to guarantee employees’ health is mandatory vaccination against the coronavirus. Making vaccination mandatory in the workplace does not seem legally tenable at the moment. Mandatory vaccination is contrary to the employee’s right to the inviolability of the body. In order to be able to legitimately infringe this fundamental right, the interests of the employer must outweigh the interests of the employee. The employer’s obligation to ensure the health and safety in the workplace must therefore outweigh the employee’s fundamental right. This will not happen a lot. In addition, the registration of vaccination details of employees is contrary to privacy legislation.
The works council plays an important role in any vaccination policy. The works council can ask, on the basis of the right to information, whether the employer intends to make vaccinations compulsory for employees. Employers have to inform the works council about this.
The care task of the works council means that it must point out to the employer that making vaccinations mandatory is against the law. The works council must also ensure that the employer does not take any discriminatory measures against employees who have not been vaccinated. On the other hand, the works council must ensure that the employer guarantees safety in the workplace. And that employees therefore run the smallest possible risk of being infected at work. This contradiction makes it complicated to formulate a consistent and legally tenable policy. The works council must therefore think along with the employer when drawing up the coronavirus policy and, if necessary, seek external advice.
Refusal to consent to coronavirus policy of the employer
If the works council does not agree with the employer’s proposed policy, it may choose not to grant its consent. In that case, the employer can request the subdistrict court to grant substitute consent. Employers must then convince the subdistrict court that their interest in such a coronavirus policy outweighs the interests of the works council and, by extension, the interests of the employees.
About the author
Jan Dop is a lawyer and partner at Russell Advocaten. He is an experienced lawyer combining profound legal knowledge with the knowledge of his client and its business. Thus he succeeds to turn complex legal problems into efficient and practical solutions and adequate advice. As Head of our Embassy Desk, he assists Embassies and Consulates.
Jan advises and litigates for entrepreneurs in national and international disputes on undertaking, personnel, and real estate. His clients include international fashion businesses, IT businesses, and wholesale traders. He regularly publishes articles on employment law in legal journals.
Priscilla de Leede advises both Dutch and foreign companies on all aspects of employment law. She litigates and negotiates for companies in issues regarding dismissal, restructuring, non-compete disputes, contracts, and the position of directors.
Her special focus is on works councils for whom she regularly provides training courses. Priscilla publishes on a wide variety of topics within the field of employment and corporate law, such as employee illness, corporate immigration, and the posting of workers.