IS YOUR EMPLOYEE ASKING TO WORK REMOTELY FROM ABROAD? TECHNOLOGIES MAKE IT POSSIBLE, BUT WHAT ARE THE LEGAL IMPLICATIONS?
Aliant Labor & Employment Practice Area Group shared their insights and experiences on topic of “workaction”, i.e work-from-anywhere in the different jurisdictions outlining the main issues that an employer should take into consideration. We have created a seven part series on this topic.
By Ron Meulmeester of Aliant Netherlands: PART V, THE DUTCH POSITION
The “Work Where-ever You Want” Act (2022):
The “Work Where-ever You Want” bill was passed by the Dutch House of Representatives on July 5, 2022, and is currently before the Senate for consideration. The chances of this law becoming a reality are high. Reason enough to explain a bit more about the ins and outs of this new law and whether the “Work Where-ever You Want” Act really means work where ever you want.
The discussion regarding what is sometimes called the right to work from home became more relevant than ever during the corona-crisis. The initiators of the “Work Where-ever You Want” Act believe that after the corona -risis there was a greater need for employees to work from home, or at least an alternating rhythm between working at home and in the office (hybrid working).
The Work Where You Want Act aims to amend the current Act, called the “Flexible Working” Act (Wfw), with the biggest change being that an employee’s request to adjust their place of work can only be refused on grounds of reasonableness and fairness, with the employer having to weigh up interests. However, further conditions still apply to the employee.
LEGAL POSITION IN THE NETHERLANDS
At this moment an employee, who is under contract for at least 26 weeks, can ask his/her employer to change/adjust:
- his/hers (weekly/monthly) number of working hours
- his/hers period of working days, working time
- his/hers place of working
There is a right to ask (for the employee) and a duty to consider (for the employer).
Whenever the employer has consideres the employee’s request to change, the employer is entitled to deny the request, such in the intrest of the company.
The request should be done, preferably in writing, two (2) months prior to the proposed effective date of adjustment.
If the employer hasn’t decided on the request one (1) month before the intended effective date of the adjustment, the working hours, workplace or working time will be adjusted in accordance with the employee’s request.
A request can be done by an employee only once a year.
NEW (UPCOMING) SITUATION:
Workplace : The balancing test.
Whereas the new bill initially provided that an employer could only reject an employee’s request to change the place of work because of a compelling business interest, this proposal has now been “watered down” and an employer must test an employee’s proposal to change the place of work against the standard of “reasonableness and fairness”.
It is expected that this (weakened) proposal will start to be adopted.
Soon, therefore, a balancing of interests will have to take place. In doing so, an employer must properly weigh the interests of the employee.
The employee should invoke interests that prevail over those of the employer.
But what is considered an overriding interest?
In any case, the legislative history shows that limiting a lot of travel time, the employees mental health or his increasing productivity can be a weighty interest for the employee to work from home.
And, if necessary, an employer should proactively ask the reasons why an employee requests a change of job.
However, the workplace is not a place freely chosen by the employee.
And there are a few limitations: The proposed place of work must be within the EU, and must be either the employee’s place of residence (being there, where the employee is registered) or the employer’s (other) co-location.
This means that the term “work where-ever you want” is a bit misleading. For example, the employee may not perform work somewhere on a terrace or in a coffee shop. So, if your employee asks you to work from the beach in Bali, the rule is that you may refuse this request, provided it is considered and discussed (tested for reasonableness and fairness).
After the employee has made his/hers request to work from home (or somewhere else), the employer will need to sit down with the employee and discuss the circumstances. Thus, each request must be evaluated separately because the circumstances vary from employee to employee. After this, the employer must assess whether its interests should give way to the employee’s interests by the standards of reasonableness and fairness. He must be able to motivate this consideration.
Potential grounds for rejection include:
- Desired social cohesion in the workplace (which, if substantiated, is expected to be a strong argument).
- Desired cooperation within teams.
- Heavy administrative or financial burden for employer (fiscal aspects) (i.e. not the costs of setting up a home office)
A lot of companies already have implemented a homeworking policy.
Advice: Involve the works council in the new company’s homeworking policy, so that you, as an employer, create more understanding for the new policy and it will immediately be seen as an interpretation of the “reasonableness and fairness”norm. This increases the likelihood that you, as an employer, can legitimately reject a deviant request.
However, as an employer you should still consider the request, discuss it with the employee, and, weighing up the interests, justify the decision on the request (i.e. not just refer to the policy).
Under Section 27 WOR (Works Council Law), an employer (who is obliged to establish a Works Council in the company) must seek the Works Council’s consent for certain details of a homeworking policy.
Advice: To increase the support of the works council and to further specify the reasonableness and fairness standard, it is advised strongly to ask your works council for advice on the overall policy.
Thus, the “Work Where-ever You Want” Act does not literally imply that an employee may work where-ever he/she wants.
There are also conditions attached to the request to work from home which mean that in far from all cases such a request will be granted.