COVID-19: refusal to comply with preventive measures

Refusal to comply with measures to prevent the spread of the virus may constitute a serious cause, justifying an immediate termination of the employment contract

While Belgium is once again facing an increase in Covid-19 positive cases, some judicial decisions confirm that the non-respect of the measures to prevent the spread of the virus can constitute a serious cause, justifying an immediate termination of the employment relationship, without notice or severance indemnity. The labour tribunal of Liège, division Liège, recently ruled in this sense, considering that the dismissal for serious cause of an employee who came to work after having a high-risk contact with a person testing positive for Covid-19, without going into quarantine, was justified. The Dutch-speaking labour tribunal of Brussels, in its turn, confirmed the termination of an employment contract for serious cause of an employee who repeatedly failed in his obligation to wear a mask in the workplace, after several reminders.

Decision of the labour tribunal of Liège

The decision of the labour tribunal concerns an employee working in a nursing home who, in the context of his function, was regularly in contact with the residents of the nursing home and with colleagues.

Although he knew that he had had a high-risk contact with a person who tested positive for Covid-19, the employee did not do a test, nor did he go into quarantine. On the contrary, he was present at his workplace the next day, explaining to two of his colleagues that he had received a text message informing him of the positive contact, but that he did not intend to be tested or to quarantine himself as he would lose part of his remuneration. The employee also told his two colleagues that he did not intend to inform the management and that next time he would not tell anyone.

Having considered these facts, the employer decided that they immediately and definitively made it impossible to continue the professional relationship and proceeded to the dismissal for serious cause of the former employee.

The employee lodged a complaint against this decision; however, the tribunal confirmed the decision of the employer. It held that, even if the Covid-19 measures were not in the labour regulations or in an internal written communication, any citizen who had been exposed to a high-risk contact with a person who tested positive for Covid-19 had the legal obligation to quarantine himself immediately, to contact his treating physician for a Covid test and to remain in quarantine for a minimum period of 10 days.

The tribunal therefore considered that it was a case of serious misconduct for an employee to come to work, especially since it concerned a nursing home, after having a high-risk contact with a person testing positive for Covid-19, without carrying out a Covid test and without going into quarantine.

Decision of the Dutch-speaking labour tribunal of Brussels

In another case, an employee had received two warnings from his employer for not wearing a mask in the workplace, contrary to what was provided by the legal provisions in force at the time. Following a third finding of non-compliance in this regard, the employer dismissed the employee for serious cause.

The Dutch-speaking tribunal of Brussels, with which the employee similarly lodged a complaint, confirmed the dismissal for serious cause.

The tribunal recalled that the wearing of a mask was, at that time, an essential and obligatory safety measure, provided for by law. Although the employee was aware of this obligation through the two warnings he had received and the internal communications from the employer, he had minimised the importance of wearing a mask, in violation of the applicable legal obligation and the instructions given by the employer, and this by putting himself and his colleagues at risk.

The tribunal considered that this behaviour immediately and definitively broke the trust necessary for the continuation of the employment relationship.

The labour tribunal of Antwerp, division Hasselt, already rendered a judgment in the same sense in July 2020, by authorising a dismissal for serious cause of a protected employee who refused to wear a mask. The tribunal noted that the employee had endangered himself and his colleagues, as well as the nature of the company’s activity. The company was active in the food industry, which requires a strict hygiene and compliance with safety conditions.

Action point

If an employee does not respect the sanitary measures imposed at federal level and/or at company level this may constitute, depending on the circumstances, a serious misconduct justifying the immediate termination of the employment contract without notice or severance indemnity. Among these circumstances, which must always be appreciated in concreto, there is in particular the fact that the employee is in regular contact with vulnerable people, that the employer is active in a sector where hygiene is paramount and/or that the employee has been repeatedly admonished to comply with these Covid-19 measures.