20 November 2023
The corona pandemic has been behind us for a while now. A period when working from home or elsewhere than in the workplace was the norm.
The legislative proposal with the somewhat misleading name ‘Work where you want’ also dates from this period. But what is happening to this announced ‘right’ for employees to decide on their own workplace?
It is important to note first, that the legislative proposal – currently before the Lower House – does not give employees the right to decide where they work. The objective of the law is to ‘facilitate dialogue about the workplace and give the employee a greater say in it’. The latter is reflected in the new legal requirement that the employer must comply with a request for a change in the workplace, unless the employer finds that, in view of all the circumstances, its interests outweigh the interests of the employee according to the standards of reasonableness and fairness. So what will this look like?
This legislative proposal Work Where You Want (Werken waar je wilt) amends the Flexible Working Act (Wet flexibel werken), which intends to give employee’s a ‘big stick’ when making a request to work from home. In all the circumstances, reasonableness and fairness afford the employer sufficient latitude to deny the request. The initiators explicitly leave it to the courts to provide a framework for this reasonableness and fairness in the balancing of interests. The Upper House is critical of the latter, as indicated by questions in late January 2023. It is preferable for employers and employees to have more clarity beforehand, so that the ‘big stick’ of pursuing litigation does not need to be used as often.
Although the initiators have listed a number of reasons and circumstances that might cause an employer to reject a request, the courts might be more inclined to decide the balancing of interests in the employee’s favour. During the pandemic, for example, it was shown in case law that employees can largely work from home and, in practice, many organisations have done so without problems regarding security, social cohesion or loss of productivity. Back then, many employers already developed policies based on working from home. This new law means that it is wise for employers to review these working from home policies in order to interpret reasonableness and fairness in advance. It is possible that the Flexible Working Act will be supplemented with this ‘entitlement’ to work from home as early as 1 July 2023.
Please note that the bill has been rejected.
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