On 2 June, the Amsterdam subdistrict court considered the question of whether KLM may ask prospective pilots whether they have been vaccinated. KLM believes it is allowed to investigate in the application process whether candidate pilots are deployable to all destinations flown. According to the pilots’ union, this would be too much of an invasion of their privacy.
What was going on?
KLM is a popular employer among pilots. That is why KLM maintains a waiting list on which pilots can register as soon as they have finished their training. Recently, for the first time since the corona pandemic, new pilots are being hired. The candidates are first invited to a “Let’s connect” interview. Nowadays, that interview asks about the candidate’s vaccination status. If the candidate indicates that he or she is not fully vaccinated against corona or does not want to answer, the application process is immediately terminated. The reason for this is that an unvaccinated pilot is not allowed to fly to all KLM destinations. According to KLM, it is its established policy not to hire pilots with travel restrictions. This is because KLM wants to avoid the risk of not being able to fill the flight schedule.
Nothing is recorded about vaccination status: the candidate is simply removed from the waiting list if he or she is not fully vaccinated. According to KLM, this has not yet happened in practice because every candidate was vaccinated or stated that he or she was willing to be vaccinated.
Among the existing staff, KLM does employ pilots with travel restrictions, as many as approximately 30% of the total. This concerns pilots who are not allowed to fly at night for medical reasons, for instance, or pilots who do not wish to be vaccinated against corona. Travel restrictions are therefore taken into account for existing staff. KLM does not take measures against the pilots already in its employ but limits itself to new personnel to be hired.
In early March 2022, a candidate pilot filed a complaint with the Dutch Airline Pilots Association (VNV), entitled: “vaccination compulsion for future KLM pilots”. Ultimately, VNV demanded in summary proceedings that KLM, under penalty of a fine, stop asking candidate pilots about their vaccination status; according to the union, this approach constitutes too great an intrusion into the personal privacy of the candidate pilots.
How did the court rule?
In practice, KLM’s approach is to deny candidate pilots a job with KLM if they are not vaccinated against corona. The court is of the opinion that requiring a vaccination against corona is an infringement of everyone’s right to respect for private life as laid down in Article 8 of the European Convention on Human Rights, the ECHR. Under certain circumstances this is allowed, but not in the case of KLM, according to the judge. The judge considered the following important:
- In principle, refusing non-vaccinated candidates serves a legitimate purpose, namely to complete the flight schedule to all KLM destinations. However, pilots may also be subject to certain (medical) travel restrictions or refuse follow-up vaccinations against corona after commencing employment. This can still cause scheduling problems. KLM’s approach therefore does not always lead to the desired result.
- The judge weighed up the interests of the two parties and ruled that the infringement on the candidates’ privacy outweighed KLM’s interest in completing the planning. Especially since there are alternatives for KLM to achieve this goal. According to VNV, many pilots are willing to cooperate in PCR testing and the system of travel restrictions can be improved.
- Given this, KLM has failed to adequately explain that it would be in trouble if it hired a few unvaccinated pilots out of a workforce of over 3,000 pilots.
In these summary proceedings, the judge prohibits KLM to ask any questions regarding the vaccination status of prospective pilots. Other employers who also require vaccination of their applicants or employees can expect the judge to apply the same strict assessment.
Thus, the employer will have to be able to properly explain why it wants to hire only vaccinated employees. The interest of the employer must outweigh the interest of the employee to make his own decisions in his personal life. If other, less intrusive, alternatives are possible to achieve that goal, the employer must choose those.
In short, requiring employees to be vaccinated is not impossible, but in light of this ruling, it is subject to very strict requirements.
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