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Milestone jab judgment in France marks ‘global turnaround’

The Amsterdam Court of Appeal recently ruled that KLM was not allowed to ask about the vaccination status of new pilots. The ruling stated that KLM must immediately end these practices under risk of a penalty of 100 000 euros per violation.

Published: June 18, 2022, 11:23 am

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    According to the Dutch judge, among other things, there was no operational necessity for such a decision.

    French Labor Court [Conseil de Prud’hommes]. Photo supplied

    Last week, the Paris Labor Court [Conseil de Prud’hommes, ed.] ruled that the decision to fire an unvaccinated nurse, even without severance pay, was illegal. The nurse has her job back and she also received compensation.

    According to the nurse’s lawyer, this is a first victory for the Paris labor judge and therefore a landmark judgment. Criminologist Karianne Boer commented on social media that this was “a first victory for the Paris Labour Court and a landmark judgment”.

    “It is remarkable that the court referred to European and national (French) law. More specifically, Article 1 of Part II of the European Social Charter is cited in the judgment: the right to earn a living by freely exercising a job. This treaty (1961) originated in the Council of Europe (not to be confused with the European Council) and contains recommendations, not binding articles in contrast to, for example, the European Charter of Fundamental Rights, which is legally binding for the Member States of the European Union. It is therefore striking that non-binding European law is used in a judgment of a French court,” said Boer.

    “In contrast to the KLM judgment of the Amsterdam District Court, which I reported earlier, this judgment does not mention anything about the proportionality test, nor about the motives of the employer, nor about dramatic arguments that can be found in, for instance, Belgian Corona Case Law of 2021. This judgment is a victory for at least two reasons.

    “Firstly, the nurse has won her case. Secondly, in the light of other case law I have written about, e.g. the KLM case in the Netherlands but also the recent Supreme Court ruling in India, this case supports my thesis that there is a slow but steady change in the administration of justice on a global scale.

    “This small Copernican revolution means that the judiciary no longer sees itself as the executive’s maid, afflicted by what the erudite Professor Mattias Desmet calls mass psychosis. Sobriety is returning. Truly, Minerva’s owl is spreading its wings.”

    Cannot be fired for health reasons

    At the end of last year, thousands of French healthcare workers were suspended who had not been vaccinated against the Corona virus. Healthcare workers in France had until September 15 to be vaccinated. The Corona law passed at the end of July included several sanctions for staff who did not want to take a vaccine, one of which was suspension.

    However, the court referred in the judgment to a person’s right to earn a living by freely performing a job. The French Labor Code also states that an employee may not be fired for health reasons.

    French Health Minister Véran emphasised in the media at the time that the continuity of care would be guaranteed, despite the suspensions.

    “We are talking about 2.7 million employees and many suspensions are temporary.” According to him, most of the suspensions have been handed out to support staff and only a small proportion of them apply to “white coats”.

    The number of people in the health sector who had resigned because of the introduction of the vaccination requirement was estimated by the minister at a “few dozen”.

    But Dutch NOS correspondent Eline Huisman highlighted that these statements did not correspond to reality: “There are ultimately two sides to the story […] Those few thousand suspensions did have an impact in some places. For example, at a hospital in Montélimar, ‘non-urgent treatments had to be scaled down’ because three anaesthetists were suspended.”

    Suspensions had also impacted elderly care. Hospitals and care centres were already struggling to recruit enough staff, partly because many nurses were working in vaccination centres.

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