Published on 21 July 2025
THIRD SECTION
Application no. 418/25
Metoda DU TOIT
against Slovenia
lodged on 28 December 2024
communicated on 4 July 2025
SUBJECT MATTER OF THE CASE
The application concerns the dismissal of an employee in a private company for failing to comply with COVID-19 related measures and subsequent proceedings.
The applicant had an employment contract of indefinite duration since 2018 with a private company engaged in the sale of household appliances. In 2021, during the COVID-19 crisis, the applicant was dismissed because of her refusal to comply with the COVID-19 pandemic related requirements set out in the 2021 Decree on the manner of meeting the condition of recovery, vaccination and testing to curb the spread of SARS-CoV-2 virus infections (that is a proof of recent recovery from COVID-19 infection, negative COVID-19 test result or a proof of up-to-date COVID-19 vaccination) (Odlok o načinu izpolnjevanja pogoja prebolevnosti, cepljenja in testiranja za zajezitev širjenja okužb z virusom SARS-CoV-2, “the 2021 Decree”).
The applicant challenged her dismissal before the domestic courts, arguing, inter alia, that COVID-19 related requirements and her dismissal for non-compliance with them lacked legal and scientific basis and amounted to an unlawful and disproportionate interference with her constitutional rights, including her right to work and social security. She moreover invoked her right to a fair trial, effective remedy, data protection and equal treatment before the law. Her request for leave to appeal on points of law and her constitutional complaint were dismissed as not requiring an examination of the case on the merits.
The applicant complains under Article 6 of the Convention that the domestic courts failed to address her main arguments and evidence in violation of her right to a fair trial.
She further complains about being required to comply with COVID-19 related measures as a condition for preforming her work and about her subsequent dismissal, arguing that it was unlawful, unnecessary, imposed a disproportionate burden on her and was not preceded by consideration of less restrictive alternatives. She also submits in this connection that she was unable to meet her basic needs due to the loss of income.
Invoking Article 8 of the Convention, the applicant complains that her employer collected and processed her personal and health data – which underpinned her dismissal – without her consent, in the absence of a proper legal basis, and in a manner that constituted a disproportionate interference with her private life.
Under Article 14 of the Convention the applicant complains about discrimination on the grounds that she – as an unvaccinated person – was required to regularly test in order to have access to, inter alia, her employment, as opposed to those who were vaccinated, despite the evidence to the effect that vaccinated people were able to transmit COVID-19. The differential treatment of nonvaccinated individuals therefore lacked any justification.
QUESTIONS TO THE PARTIES
1. As regards her obligation to comply with the COVID-19 pandemic related requirements set out in the 2021 Decree as a condition for preforming her work and her ensuing dismissal, have the domestic courts struck a fair balance between the applicant’s right to respect for her private life and competing interests, as required by Article 8 of the Convention?
2. Have the domestic courts complied with Article 14 of the Convention taken in conjunction with the above stated complaint under Article 8, and/or with Article 1 of Protocol No. 12 to the Convention?
3. Has the collection and processing of the applicant’s personal and health-related data by her employer been properly regulated in domestic law and accompanied by adequate and sufficient safeguards against abuse (see Bărbulescu v. Romania [GC], no. 61496/08, §§ 116-23, 5 September 2017)? Have the domestic courts’ decisions regarding the collection and processing of the aforementioned data complied with positive obligations to protect the applicant’s right to respect for her private life as guaranteed by Article 8 (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 118 and 122-37, 17 October 2019)?
4. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?