11 December 2024
The corona crisis changed how organisations think about working from home. It even led to a legislative proposal; the Work Where You Want Act (wetsvoorstel ‘werken waar je wilt’) aimed at making it easier for employees and employers to reach agreements on hybrid working.
However, the legislative proposal was rejected by the Senate in 2023. This leaves the current legislation on workplace adjustment unchanged.
The fact that there is no legal entitlement to work from home for the time being does not mean that you can simply reject, either partially or fully, an employee’s request to work from home. You must always consider the wishes of the employee and the interests of your organisation when such a request is made. In addition, you must give sound reasons for the rejection. In other words, you must provide reasons for requiring the employee’s physical presence in the workplace. For instance, this could include the importance of team building, the induction of new employees or providing service to customers.
The issue of whether an employer was justified in refusing a request to work from home is regularly referred to the courts. A recent case revolved around an employee who had been primarily working from home during the corona period. At some point, the employer stipulated that the employee’s team should return to the office three days a week. The employee argued that this was not feasible for her due to medical restrictions. The company doctor also confirmed that increasing the number of working days in the office would exceed the employee’s work capacity.
According to the employer, however, the performance of the team of the employee was inadequate and the improvement process required the team to be in the office for at least three days. This would allow the employees to gain a better understanding of each other’s work and to ask each other low-threshold questions for help. However, the employer was willing to make an exception for this particular employee: she was only required to return to the office two days a week.
The appeal court ruled that under a working from home policy, the employer has the final say. The request for the employee to return to the office two days a week was therefore within the employer’s instructional authority under the law. It was also relevant that the employer had provided options to make travelling to the office easier for the employee, such as offering hotel accommodation and travelling outside rush hour. In this case, the employer had not acted seriously culpably by requesting the employee to work in the office two days a week.
Court of Appeal of ‘s-Hertogenbosch, 18 January 2024, ECUI (abridged): 113.
An employee who has been employed for at least 26 weeks in an organisation with more than 10 employees may request a change in their workplace. He must make such a request in writing at least two months before the desired effective date.
After receiving the request, your organisation is obliged to give a reasoned response no later than one month before the effective date. If your organisation does not do so in time, the workplace will be adjusted in conformity with the employee’s wishes. In other words, never leave a request to work from home too long.
Clear internal policies on how your organisation deals with requests to work from home also provide managers and employees with guidance. As is apparent from the ruling above, a discussion about working from home can actually disrupt the employment relationship to such an extent that its continuation is impossible. Requests to work from home should always be taken seriously. You are likely to be more understanding of the employee’s wishes in a good conversation. At the same time, you can then elaborate on your organisation’s interests.
Do you have questions about working from home or would you like advice regarding a working from home request? Please do not hesitate to contact us.
This article appeared earlier in HR Rendement.
