The core of the dispute is whether KLM is allowed to ask new pilots whether they have been vaccinated against corona and, if their answer is negative or non-existent, to exclude the new pilot from the recruitment procedure. [1]

On 10 March 2022, a candidate pilot sent an e-mail to VNV (the Pilot Union) with the title ‘vaccination requirement for future KLM pilots’. In this email, the candidate pilot informed VNV that KLM is asking about the vaccination status of the candidates, and that the candidate pilot feels forced to get the vaccinations to secure himself a job, which he is very upset about and causes him mental complaints. [1]

Subsequent correspondence between the parties shows, among other things, that KLM takes the position that the agreements made between VNV and KLM only apply to KLM employees and not to prospective employees, and that KLM (even before corona) set as an assumption requirement that an applicant for the position of pilot must be employable at all destinations of the KLM network. Furthermore, KLM did not comply with VNV’s request to confirm that it would refrain from inquiring into the corona vaccination status of candidate pilots. [1]

VNV is a trade union that promotes the interests of pilots employed by KLM. It also promotes the interests of members who are candidates for employment with, for instance, KLM. [1]

KLM currently employs more than 3,000 pilots. These can be divided into the categories of captain, first officer and second officer. There are also differences within these positions, namely which pilot may fly which type of aircraft (e.g. Boeing 737 or Airbus A330). Retraining to another aircraft type generally takes 3 months. [1]

During the corona pandemic KLM did not take on new pilots for some time. Now there are about 50 vacancies again and KLM has started to approach future pilots again. The Flight Crew Recruitment Coordinator with focus on Flight Operations, Ms. [name 9] , is responsible for the recruitment of cockpit personnel together with the Pilot Recruitment Manager. She stated the following about the “let’s connect” interviews with these potential pilots: [1]

These conversations were intended, after the influx of new pilots had stopped for a long time, to reconnect with the waiting list candidates and inform them of the fact that KLM expects the influx of new pilots again. Matters such as notice period, validity of licences/medical examinations, availability, what a candidate had done during the Corona period etc. were discussed. It was also discussed that one should be able to fly the entire network of KLM. In most of the interviews, the candidates immediately indicated themselves that they were fully vaccinated. In one interview, the question was actually asked whether a candidate was fully vaccinated. No candidate indicated that they were not fully vaccinated or unwilling to do so. There were no candidates who did not want to answer the question asked. [1]

In the event that a candidate had indicated that he or she was not fully vaccinated or prepared to be vaccinated, or did not want to answer the question whether the candidate had been fully vaccinated, this would have been a reason not to offer the candidate concerned an appointment as a pilot with KLM because the candidate would not be able to fly to every destination. This is in accordance with KLM’s always applicable policy. In such a case, we do not record anything about this and the candidate is simply removed from the waiting list. However, this has not been an issue. [1]

Nothing is recorded and/or registered regarding the vaccination status of candidates. [1]

During the corona pandemic the number of pilots with a travel restriction has so far increased by 30% to 800. A travel restriction means that a pilot is not allowed to fly to a destination or, for example, not at night. The (medical) travel restrictions are administered through the company doctor, KLM Health Services (KHS). [1]

Pilots who cannot fly to a destination where corona restrictions apply because they have not been vaccinated or do not (wish to) undergo testing may apply for such a travel restriction through KHS. KLM then only sees during the planning that there is a restriction and not whether the pilot has been vaccinated or not. [1]

KLM does not require its current pilots to have a corona vaccination. [1]

KLM Vademecum Vliegend Personeel (Guide to Flight Personnel) policy on vaccinations:

Crew are vaccinated against yellow fever, typhoid fever, diphtheria, tetanus & poliomyelitis (DTP) and hepatitis A at KLM Health Services free of charge. It is not allowed to fly within 24 hours after a vaccination. For cockpit crew there is the possibility to get the vaccinations on the day of the medical examination. There are countries that make certain vaccinations mandatory. Crew must carry the vaccination booklet with them every flight. [1]

A protocol to the collective bargaining agreement contains agreements on coronary restrictions:

f. KLM and the VNV will closely monitor developments regarding corona, corona testing and the corona vaccine. Both testing and vaccination will be on a voluntary basis only. If this is to the detriment of the total deployability of the KLM flying corps and/or the ability to carry out the KLM network, KLM and the VNV will consult each other. [1]

Message from the Global Aviation Advocacy Coalition

This is an international alliance of thousands of pilots, including the Dutch Aviation Collective supported by 17,000 doctors and medical scientists. [2]

The coalition warns that the side effects of corona vaccinations lead to dangerous situations. The Dutch Aviation Collective with 1400 members has also joined the action. Chairman and experienced pilot Mark Juch: [2]

“A number of colleagues have reported to us with vaccine damage, such as heart problems. When something like that happens in flight, it’s very dangerous. It’s just a matter of time before it goes wrong”. [2]

Coalition participants regularly receive reports of pilots suffering vaccine damage, including heart problems, blood clots, and neurological and hearing disorders, they say in their statement. Pilots working for KLM have also reported vaccine damage. According to the cry for help, affected pilots are not supported or taken seriously. They often lose their medical certification, which means they can no longer fly. The unions do not stand up for these pilots enough or simply do not know, as many incidents are deliberately kept quiet. [2]

Our Flight Safety Manual states that you may not use medical drugs or undergo medical procedures whose effects on your functioning during your work are uncertain,” says pilot Mark Juch. [2]

“That certainly applies to the corona vaccines, which have a temporary approval and are actually still in the experimental phase. The motto in aviation has always been: safety above all else. We have very strict medical examinations. If there is something wrong with you, you are grounded. But now all of a sudden that doesn’t apply anymore?” [2]

VNV claimed by way of a judgment, as far as possible provisionally enforceable:

• prohibit KLM with immediate effect from inquiring in any way into and/or using information from candidate pilots about their anti-corona vaccination status and/or from rejecting candidates because they have indicated that they are not vaccinated and/or do not wish to take the vaccination; [1]
• To order KLM to pay a penalty of €100,000 for each violation of this prohibition; [1]
• To order KLM to unconditionally reinstate the applications of those candidates they have rejected because they have not confirmed to be vaccinated against corona within 2 days after service of this judgment and to inform them within that term, and to disregard the vaccination status completely in the further application process; [1]
• To order KLM to pay a penalty of €100,000 for each violation of this order; [1]
• To order KLM to pay the costs of the proceedings. [1]

Defendant’s Argument

The Court’s Reasoning:

KLM argued that it only asks whether the pilots are fully deployable, of which, according to KLM, a vaccination against corona is a part. Quite apart from the fact that KLM asks directly about vaccination status, by asking about full deployability KLM is in fact also asking about vaccination status. By terminating the job application with immediate effect if the answer to the question of whether the candidate pilot has been vaccinated or wishes to be vaccinated is not forthcoming or is negative, KLM may be putting candidate pilots under pressure to (still) vaccinate. After all, without vaccination there is no job at KLM, for which the candidate pilots have all been trained. [1]

References

1. The Court Ruling
2. Pilots’ emergency cry: vaccinations make flying unsafe (in Dutch)
3.