The term ‘non-disclosure clause’ refers to a (recorded) agreement between, for example, a healthcare institution and a client that no information about an incident is made public or may be provided to third parties. Silence clauses are regarded as undesirable confidentiality provisions.
In the event that an incident has occurred, something has gone wrong as a result of which the quality of youth care, care, or support is at stake, possibly resulting in damage to the client. There may be a reason not to disclose this incident, for example, to keep it out of publicity or the media and thus prevent reputational damage. It – now adopted – bill clarifies that such agreements about remaining silent about incidents are impermissible. By explicitly stipulating that a silence clause is null and void, a silence clause has no effect. This means that none of the parties (in the aforementioned example, the healthcare institution and a client) can invoke the non-disclosure clause.
In that field of tension, the judge ruled that the work of a dancer means that he cannot always keep a sufficient distance from his fellow dancers. Therefore, his employer had no other option than to make regular testing mandatory for all dancers. After all, the employer was obliged to create the safest possible situation on the work floor. Another factor, in this case, was that a self-test minimizes the breach of personal integrity. Moreover, this employee played a prominent role as a dancer in the company and a permanent replacement would not only be risky but would also cost time and money (double salary costs). For these reasons, the invasion of the employee’s privacy was justified, since there is a legitimate purpose for that invasion,
Did strike continue payment of wages always justified?
However, the conclusion cannot be drawn on the basis of this ruling that a recalcitrant employee is never entitled to continued payment of his wages. Different scenarios can be distinguished.
As long as the employee is not ‘sick’, the legal framework of Section 7:628 of the Dutch Civil Code applies. The key question is whether not showing a compulsory test certificate is within the employer’s sphere of risk. From a legal point of view, this is the starting point and the employee’s wages should continue to be paid. If an employee refuses to show a negative test certificate, the main question is whether the employer still has work for that employee:
i) If the employer offers a reasonable alternative – such as working from home or another workplace or position that does not require a negative test certificate – the employee should accept that offer. If the employee also refuses that offer, this will be for his account and he will lose his entitlement to wages for the period of that refusal.
ii) If the employer does not offer such an alternative – for example, because there is simply no such alternative – then the failure to show a mandatory test certificate for the situation may be at the risk of the employer, as a result of which the employer remains liable for wages. However, this must be viewed on a case-by-case basis, as we saw in the case of the dancer. It is ultimately the judge who has to make a judgment on this.
