The place of work is a much debated topic. To mention a few examples: Disney recently obliged all its employees to come back to the office full-time and Twitter announced that employees must be in the office for a minimum of 40 hours a week. Meantime, the bill ‘Work where you want’ (Wet werken waar je wilt) is pending with the Dutch Senate. The bill does not give an absolute right to work from home, but what does it include?
Current situation in the Netherlands
Currently, the possibility for an employee to request a change in the place of work is not treated the same as a request to change working time or working hours. It is currently quite easy for employers to refuse a request from employees to change their place of work to the home workplace, for instance.
New bill
The bill allows employees to make a request for adjustment of the place of work within the EU, for example from home. The gist of the bill is that the request should be assessed by the employer in the same manner as a request to change working time or working hours. This means that an employer will have to grant a request of an employee to change the place of work, unless his interests must give way to standards of reasonableness and fairness. For instance when the employer has compelling business or service interests (zwaarwegende bedrijfs- of dienstbelangen) opposing the request.
Practice regarding changing working hours and working time has shown that a compelling business or service interest is not often present. Costs, organisational problems, problems of a scheduling nature or precedent effects do principally not qualify as an overriding business or service interest of an employer.
During the consideration of the bill it has been mentioned that the employer’s interests in changing the place of work may include social cohesion within the team, department or company, the smooth cooperation within teams and/or the creation of a heavy financial or administrative burden on the employer when granting the request. Limiting a lot of travel time, increasing productivity and promoting mental health are mentioned as possible employee interests for having to grant the request.
As is common under Dutch employment laws, the employer has to weigh the interests of itself against those of the individual employee. Other conditions for the employee’s request are (i) the employee must have been employed with the employer for 26 weeks or more; and (ii) the request should be submitted at least two months before the intended effective date. The employer must provide the employee with a written reasoned decision no later than one month before the intended effective date.
Next steps
The Senate issued a preliminary report on 24 January 2023 and is awaiting a further explanatory memorandum from the bill’s initiators. Therefore, the approval process could potentially go very quickly.
Want to know more? Then please contact the Employment and Pensions Team of Van Doorne.
