27 August 2026
Around the summer of 2025, two judgments were published on a highly topical issue: changes to home working policy. From the United States, a trend seems to be spreading to the Netherlands in which companies are trying to force employees to work from the office more often, or even full-time.
There are differing views on the usefulness, necessity and desirability of this, and that was also only a minor part of the two proceedings. Nor did they concern the question of whether employees who work from home are individually bound by stricter home working rules. The judges did, however, consider whether the works council (WC) has a right of consent in relation to the intended changes to the home working policy. The answer in both cases was “yes”. Below is a brief explanation of both judgments.
In both cases, the issue was indeed a desire coming from outside the Netherlands: the Taiwanese parent company of Asus and the American parent company of Caterpillar wanted to allow working from home less often.
In the Asus case, this concerned a change from the arrangement in place since 2022, under which employees were allowed to work in the office two days per week, to a requirement to work in the office at least three days per week. According to the Amsterdam Subdistrict Court on 3 June 2025, this intended change is subject to the works council’s right of consent.
At Caterpillar, the works council agreed in 2017 to flexible working, which included working from home. From 2022 onwards, Caterpillar first encouraged, and from late 2023 and late 2024 onwards required, employees to gradually return to the office. On 15 September 2025, the Subdistrict Court of ’s-Hertogenbosch (ECLI:NL:RBOBR:2025:5758, District Court of Oost-Brabant) ruled in summary proceedings that Caterpillar may not implement the already adopted decision to return to the office because the works council has a right of consent in this respect.
As early as 2002, the Supreme Court confirmed in the so-called Holland Casino case that the number of intended decisions for which the works council’s consent is required is exhaustively regulated by law. Outside that scope, there is therefore no right of consent, unless the entrepreneur has granted additional non-statutory consent rights, for example through an agreement with the entrepreneur.
It is also important that the Supreme Court held that, in respect of the subjects mentioned in the law (Works Councils Act), a right of consent only arises if the intended decision is actually meant to regulate that specific subject.
So only if the purpose of the regulation introduced or amended by the entrepreneur relates to such a statutory consent-based subject does the works council have a right of consent. If an intended decision only has consequences for, for example, the consent-based subject of working conditions, then the works council has no right of consent; but it does if the purpose of the intended decision is to change working conditions.
This last point is exactly the crux of the two judgments. In both cases, the issue was an intended change to the home working policy. Two judges ruled that the change is subject to prior consent by the WC because the purpose of the changes is to alter working conditions. That means the assumption of both judges is that working from home, or home working policy, can be classified under working conditions.
There is certainly something to be said for that, given the list in the ’s-Hertogenbosch judgment of the circumstances taken into account, namely that working from home affects:
The judge in Amsterdam needed even fewer words, stating that working conditions are “simply materially different when someone works from home than when someone works in the office.”
In my view, these two judgments will lead, in the period ahead, to employers often submitting changes to home working policy to the works council for consent before implementing them. At the very least, that seems legally prudent. This remains the case until higher courts confirm or reject this line of case law. As far as I know appeal against both judgments is pending.
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