Suspended in September 2021 because she did not have a complete vaccination schedule against Covid-19, a nurse obtained her reintegration into the teams at the Laurentides nursing home, in Tourouvre-au-Perche, in Orne. .
Tuesday, March 1, the industrial tribunal of Alençon ruled in his favor.
This nurse attacked her employer, the Association de Bienfaisance de la Pellonnière, an organization which officiates in the development of social works for people in physical and psychological difficulty and dependent elderly people.
She demanded the end of the suspension of the employment contract, the payment of all unpaid wages since the beginning of the cessation of her activity as well as 3000 euros in damages.
The labor council
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In addition to demanding his reinstatement at the Tourouvre-au-Perche nursing home, managed by the association, the council acceded to the nurse's request for payment by the employer of all unpaid wages, i.e. a total amount of 13,412 euros.
The Pellonnière Charity Association will also have to pay its employee 1,500 euros in damages.
In fact, for a reason independent of the industrial tribunal case, the nurse has already returned to her establishment today.
As indicated by the management of the Ehpad, this health professional was actually able to return to work in early February after presentation of a valid vaccination pass.
As a reminder,
a vaccination pass is valid after two vaccine injections and one contamination with Covid-19 or one injection and two contaminations.
The injection of three doses is not strictly necessary for the validity of the pass.
Contrary to current case law
This decision goes against the case law concerning the arrest of non-vaccinated nursing staff.
In September 2021, two unvaccinated caregivers from Haut-Rhin filed an appeal with the Strasbourg administrative court after being suspended by the Loewel hospital in Munster, which employed them.
However, in a decision of September 27, the court had rejected their request, considering that the arguments justifying their suspension "
are not such as to constitute a serious and manifestly illegal attack on fundamental freedoms
".
Read alsoVaccine: “Can personal convictions prevail over civic obligations?”
This time, the particular context led to a different decision.
As Ouest France reports, in 2015, this nurse fell ill with cancer from which she took four years to treat herself with chemotherapy.
She is also raising her 16-year-old daughter alone, who has no other family.
The industrial tribunal considered that, given the health ordeals she had gone through and knowing that this nurse was her daughter's only family support, the argument she put forward, namely the refusal to take the risk of health by being injected with several doses of a vaccine that the council considers
“in the clinical trial phase”
, is a bona fide argument.
Precisely, on the qualification of the status of the vaccine, this argument of the industrial tribunal differs from the opinion of the Council of State and other jurisdictions which judge that the vaccine is no longer in the clinical trial phase.
“
We are dealing with dissenting case law
”, explains Delphine Provence, lawyer specializing in the defense of health professionals.
“
Until now, case law has confirmed the vaccination obligation.
All the decisions of the administrative courts and of the Council of State were in line with this.
This time, there is a breach in the case law
, ”she says.
Does this mean that this decision is intended to be reproduced by other jurisdictions?
“
It does not bode well for the future
”, warns Delphine Provence.
As the lawyer explains, this decision by the labor courts of Alençon is a summary procedure, that is to say a quick procedure, which must prevent imminent damage – in this case, the financial risk run by this nurse. due to the lack of salary.
This case law could be replaced by a future so-called substantive industrial tribunal decision, which is longer but more likely to form a new rule which will generally apply.
The employer will appeal
"
We took into consideration the opinion of the prud'hommes
", declares Yvan Cartel, director of the Laurentian nursing home which employs this nurse, before adding: "
We decided to appeal and, of course, we We will respect the decision made
”.
The association has until March 15 to appeal.
Regarding the suspension measure taken by his establishment in September 2021, the director affirms: "
We had no other choice but to apply the law
".
September 15, 2021 – the day preceding that of the nurse's suspension – marked the start of the implementation of the sanctions provided for by law against professionals who refuse to comply with the vaccination obligation.
A legal vagueness then persisted as to the possibility for healthcare establishments to suspend or strike off, on the grounds of abandonment of post, staff refusing vaccination and therefore no longer able to report for work.