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The Netherlands: First Judgment regarding Termination on the ‘F-Ground’

Author: Lydia Milders

It’s a fact: the first judgment regarding termination on the ‘f-ground’

An employer can only terminate an employment agreement if there is a reasonable basis to do so. What is considered a reasonable pretext is exhaustively listed in Article 7:669 of the Dutch Civil Code. One of these grounds is the so-called ‘f-ground’: the refusal of the employee to perform the stipulated work due to a serious conscientious objection. Since the introduction of the system of reasonable grounds in 2015, there has been no judgment in which a termination was awarded on the f-ground. This has changed with a recent judgment of a subdistrict court.

What happened in this case?


The employee had been employed by a hospital as a hospital pharmacy assistant since 1 May 2013. The hospital used the Working Group on Infection Prevention guidelines (hereafter: ‘’WIP’’) for the work performed. The WIP recommended, among other things, to wear work clothes that leave the forearms uncovered. However, during the first few years of her employment, the employee was permitted to keep her forearms covered because of her religious beliefs. An important reason for this exception was that she had little to no contact with patients. However, due to a change in operations within the hospital, this changed. From that moment, the employee had to come into contact with patients.

In order to assess whether it would still be possible for the employee to keep her forearms covered, the hospital engaged two experts to provide an opinion on the matter. Both experts believed that wearing work clothes that leave the forearms uncovered contributed to infection prevention and that it was therefore not possible for the employee to keep her forearms covered. The employee nevertheless stated that she did not want to perform the work with uncovered forearms.

As a result, the hospital looked for reassignment opportunities. However, these were consistently turned down by the employee. Eventually, the hospital had no other choice than to request termination of the employment agreement on the f-ground (serious conscientious objection). The essential question in this case was whether the hospital, by requiring the employee to work with uncovered forearms, made a prohibited distinction on the basis of religion as referred to in Article 5 of the Dutch Equal Treatment Act.

Judgment of the court

Prohibited distinction?

According to the court, it was not in dispute that the hospital made an indirect distinction based on religion by requiring the employee to work with uncovered forearms. In this case, it had to be assessed whether the distinction was objectively justifiable. For the distinction to be objectively justifiable, there had to be a legitimate purpose and the means of achieving that purpose had to be appropriate and necessary.

The court was of the opinion that the requirement of a legitimate purpose had been met. The clothing requirement set by the hospital aimed to prevent infections. There was no discriminatory intention. According to the court, the means of achieving the purpose had also been appropriate and necessary. It was clear to the court that there were no other means available for the hospital to achieve the purpose, that would have made a less onerous distinction. Furthermore, in view of the interests involved, the clothing requirement was also proportional. The conclusion of the court was that the indirect distinction was objectively justified.

Termination of the employment agreement on the f-ground?

The court then proceeded with the assessment whether there was a fulfilled f-ground. The employee had refused to perform the stipulated work in the manner required by the employer due to a serious conscientious objection. A serious conscientious objection exists if the employee is in a state of conscientious objection if, in the context of the performance of his/her duties, he/she is forced to do or refrain from doing things that are not in accordance with his/her personal values and standards.

The employee took the position that this was not the case, since it was the employer who refused to allow her to do her work. The subdistrict court did not go along with this argument. The ‘refusal of the employee to perform the stipulated work’ should also be understood to mean the situation in which the employee is unable and unwilling to perform the work in the manner required by the employer. Therefore, the court ruled that there was a conscientious objection as a result of which the stipulated work could not be performed. Now that the hospital had already looked for reassignment possibilities and concluded that no other suitable positions were available, the court terminated the employment agreement between the parties on the f-ground.

Subdistrict court Midden-Nederland, 26 April 2022 – ECLI:NL:RBMNE:2022:2027