20 November 2023

Work wherever you want in 2023?!

By Koen Vermeulen

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?

No right to work where you want

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?

Balancing of interests when granting/rejecting requests to work from home

  1. The employee applies in writing to the employer for permission to work elsewhere. The employee must justify this request, i.e. give reasons, as well as indicate the amount of time he/she will be working from home and how his/her home office is arranged;
  2. The request must pertain to working from the employee’s own home in an EU country. Stricter rules apply in the case of a request to work from the employee’s own home outside the EU or from the local coffee shop, and it is easier for the employer to reject the request;
  3. The request must be made two months before the desired starting date of working from home;
  4. The employer must consult with the employee about the request;
  5. What interests can the employer raise?
  • The employer can raise the interest of maintaining ‘social cohesion in the workplace’ to deny the request to work elsewhere or limit it to a certain number of specific days;
  • The employer may also include the costs associated with home-based employees, such as costs associated with setting up the home office under the Occupational Health and Safety Act (Arbowet), in its decision to grant or deny a request to work elsewhere;
  • The nature of the work or ICT security risks may also be reasons to reject the request on the basis of reasonableness and fairness;
  • Finally, the legislative proposal initiators also mention the employee’s private circumstances and productivity as circumstances that play a role when balancing interests.

 Legislative proposal acts as a ‘big stick’

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.

Work wherever you want, unless…

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.

More information

Do you have any legal questions or would you like more information? Please do not hesitate to contact us.

Koen Vermeulen

Koen Vermeulen

Lawyer / associate partner

Koen Vermeulen is your sparring partner for all questions on employment law, employee participation and pensions.

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