France

Justice : Unvaccinated nurse reinstated at hospital

The Labour Court of Alençon (Orne) has just ordered the reinstatement of a nurse to her job in an EHPAD (nursing home) despite the non presentation of a “vaccination” scheme against Covid-19.

This information was relayed by the association DéjàVu.légal, created by citizens and lawyers who demand transparency on Covid-19 vaccines.
In this decision (below) obtained by Me Christine Halaire, of the Alençon bar, the Conseil des Prud’hommes, seized in summary proceedings on the fate of a nurse, decides :

  • to find that the suspension of this nurse was clearly unlawful ;
  • to order her reinstatement at her workstation;
  • to order the payment of all her past and future salaries pending a settlement of the dispute on the merits. What are the main reasons given by the Alençon Labor Court?
  • The fact that the suspension for non-vaccination constituted a kind of “suspension contract of indefinite duration” and was transformed into an “unlawful sanction without term”, in the words of the Council.
  • The employee’s refusal concerned “an injection in the clinical trial phase for which the European Medicines Agency has only issued a conditional Marketing Authorization”.
  • The use of a drug in the clinical trial phase required “free and informed consent”.
  • The willingness of the Labour Court to take into account the will of this nurse, who had recently recovered from cancer, “not to take any risk by refusing the vaccination obligation, especially since the legislation on the fundamental rights of workers recognized by international conventions allows her to justify this decision”.

Several reasons

According to the DéjàVu.légal Association, astute lawyers will note, upon reading this decision, that it contains flaws in both the form and the reasoning of the judges (who, as labor relations advisors, are not legal professionals). Nevertheless, as anyone can see, the judges have retained several reasons for taking the same decision. Thus, in the event of an appeal or an appeal to the Supreme Court by the employer, all the reasons given by the first judges will have to fall in order for this decision to be reversed.

Note: at the beginning of page 5 of this decision, a debate between the position of the Cour de cassation and that of the Conseil de prud’hommes. This could be a sign of what is called a “resistance of the judges of the merits”. This would be a good thing and it has already happened in social law, notably in favor of employees against the scales of the “Macron Ordinances”.

As it stands, this nurse gets her job back, her salary and also – it is not written in the decision – her dignity.
Others will follow.

Order of summary judgment

 

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