The man had been associated as a dancer with the Amsterdam Date, Dans and Theater foundation since 2006, and had also been an artistic assistant there since the beginning of this year.
Because it turned out that the man did not have a QR code, his employer asked him in October to contribute to a safe working environment by doing a self-test every week and reporting the results.
However, the dancer, who is not vaccinated, refused on principle to comply with that request. The dance company then informed the man that they respected and regretted this, but that they could no longer allow him to work. The employer also stopped paying his salary.
At the end of November, the self-test protocol started to apply to all employees.
To the judge
The dancer then went to court to demand that the dance company let him go back to work. According to the man, the employer may not require him to test himself, and to report the test results.
According to him, the suspension and wage freeze would be too far-reaching a measure. Furthermore, the requirement to test and share the results would violate his fundamental rights to privacy and physical integrity.
Justified infringement of fundamental rights
The Amsterdam subdistrict court has a more nuanced view on this. Although the judge ruled in a ruling that became public on Friday that there has been an infringement of fundamental rights, it is considered justified in view of the circumstances.
Because the dancer comes into close contact with fellow dancers during rehearsals and performances, the Subdistrict Court finds it reasonable that the employer asks for a weekly self-test and sharing of the results.
“The aim of the dance company to create a safer working environment through the measure outweighs the dancer’s objection to testing and sharing the results,” the ruling said. “The contested infringement of the dancer’s fundamental rights is justified.”
Safe working environment
Lawyer Epke Spijkerman of the dance company emphasizes that the dancer has not been suspended because he has not been vaccinated.
“That is his right. It is also his right not to want to test. But then you make it your colleagues and employer, who has a duty of care for a safe working environment for all employees and external parties such as musicians and technicians with whom they work. very difficult.”
The lawyer also points out that other measures, such as wearing a mouth cap, keeping a distance of one and a half meters and working from home are not a solution for a dancer.
“Physical contact at less than 1.5 meters is simply inherent to this work. Then you ultimately have to bear the consequence of that principled choice. This was also very annoying for the dance company, all the more because the parties have been very good with each other for years. worked together.”
The employee’s lawyer Wikke Kootstra says that the dancer will refrain from commenting, because he does not want any further fuss and considers the relationship with his employer important.