Introduction
The so-called ‘Work where you want Act’ has been rejected by the Dutch Senate today. Despite its rather misleading name, this Act did not provide for an actual right to work from wherever you want, but only introduced a mandatory reasonableness and fairness test for certain employers when dealing with certain requests to work from home.
Now that the Act has been rejected, the current legal framework remains applicable to all requests to change the workplace (including from home). What does this mean for employers?
Current legal framework
In the Netherlands, requests to change the workplace (including to work from home) are governed by the Dutch Flexible Working Act. This Act does not provide for a right to work from home. It (only) provides for a right to ask for the employee and a duty to consider for the employer.
This framework only applies to:
- employers with at least 10 employees;
- employees with at least 6 months’ tenure;
- annual requests.
Right to ask
Employees with at least 6 months’ tenure have a right to ask for a change of workplace. This includes a request to work from home, whether in or outside the EU. Such request can only be made once a year and must be made at least two months prior to the envisaged start date.
Duty to consider
The employer is not obliged to agree to the request. The employer must consult with the employee about the request and inform the employee of its decision in writing. In case of rejection, the decision must state the reasons for it. The employer must inform the employee of its decision ultimately one month before the requested start date. Failure in doing so will result in an automatic acceptance of the request.
The employer does not need to substantiate a rejection with substantial business or service-related reasons. Such grounds are only required if an employee’s request relates to a change of working hours or work times, but not the working place. This means that the rejection can be based on more generic grounds, such as:
- organisational reasons (e.g. common practice or social cohesion),
- the employee’s performance,
- the importance of swift, direct, non-digital communication, and/or
- whether the employee needs to be physically present.
The Work where you want Act
Background
Motivated by the Covid-19 pandemic, certain left-wing parties submitted the Work where you want Act with the Dutch House of Representatives in January 2021. Their goal: strengthening an employee’s position to work from home.
At that time, several governmental (advisory) institutions and some of the biggest political parties were not convinced of the necessity of the bill. In practice, employers and employees seemed to discuss and agree on home working arrangements in good consultation. in other words: there was no problem. In addition, the bill would lead to an enhanced administrative burden for employers and implications for cross-border workers were envisaged relating to their tax and social security status.
SER-advice
The Dutch Social and Economic Council (in Dutch: SER), the most important advisor of the Dutch government, was also not convinced of the legislative bill, as stated in its advice on hybrid working of 31 March 2022. However, in this advice, the SER was convinced of the necessity of strengthening the position of employees to work from home. As such, the SER advised to amend the legislative bill by replacing the (previously included) test of substantial business or service-related reasons with a (less strict) reasonableness and fairness test. Initially the legislative bill stipulated that an employer must accept an employee’s request to work from home (if in the EU), unless there are substantial business or service-related reasons against it for which the employer would bear the burden of proof. The bill-initiators followed the advice of the SER and amended the bill accordingly.
Parliamentary process: rejection
After the bill was amended, the bill was debated and put to a vote in the Dutch House of Representatives, who adopted it (almost unanimously) in July 2022.
More than a year later (due to a newly formed Dutch Senate), the Senate debated the bill on 12 September 2023. Voting took place today and resulted in a rejection. Although several parties could understand the ideas behind the bill, the majority of the Dutch Senate is not convinced of its necessity. Some of the biggest political parties, such as the VVD and BBB, voted against it. Main reasons: not necessary, enhanced administrative burden on employers and implications for cross-border workers.
Proposed change: mandatory reasonableness and fairness test
The bill (only) introduced a mandatory reasonableness and fairness test and not a right to work from wherever you want. This new test was also limited in scope. It only applied to:
- employers with at least 10 employees,
- employees with at least 6 months’ tenure,
- (annual) requests to work from home in the EU.
For requests to work from another location than home or a home location that is not located in the EU, the current legal framework remained applicable.
No clear guidance was given on what the reasonableness and fairness test entailed. This depended on the specific circumstances at hand and required an individual, tailored approach. The bill gave the following examples of relevant (non-exhaustive) factors in this regard:
- social cohesion within the organization,
- health and personal situation of the employee,
- cooperation within teams, and/or
- administrative or financial burdens for the employer.
Limited practical impact
Whether or not the bill would have strengthened the position of employees who want to work from home remains questionable. The practical impact would have been limited for each of the following two reasons.
- Firstly, both recent evaluation reports and own experience show that employees are positive about the current legal framework and employers and employees agree on homeworking arrangements in good consultation.
- Secondly, based on scarce case law, it could be argued that courts already use a reasonableness and fairness test when dealing with (rejected) requests to change the workplace. For example, in 2017, the District Court of Midden-Nederland ruled in favour of an employer that rejected an employee’s request to change the workplace (not to work from home, but to work from the previous work location) based on the principles of being a good employer and employee (Article 7:611 DCC), in which the principles of reasonableness and fairness are reflected.
All in all, the (now rejected) bill in combination with (post-)COVID-19 experiences with hybrid working and recent media attention could possibly result in employees entering into a discussion with their employer about working from home more frequently. Employee representative bodies could play a relevant role in this as well. For example, the works council could use its right of initiative to discuss this subject and trade unions could use it as an opportunity to start consultations on a collective scheme on home working and hybrid working.
Conclusion
There is no right to work from home in the Netherlands. Not under the current legal framework, not under the (rejected) Work where you want Act. There is only a right to ask and a duty to consider. The proposed mandatory reasonableness and fairness test wouldn't have made big of a difference, as stated above.
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