The legislative proposal “Werken waar je wilt” (Work Where You Want) that reinforced the employees’ right to choose their place of work was rejected by the Dutch Senate on 26 September 2023. How do employers now have to deal with a request to work from home?
On 5 July 2022, an amended version of the “Work Where You Want” Act was adopted by the Lower House. Employers will have more room to reject a request than was included in the original legislative proposal. They no longer need to demonstrate that there are substantial business interests. Instead, they may reject a request if they feel that their interests outweigh those of the employee. To make such a weighing possible, employees will have to substantiate properly their requests, just as employers will have to do when rejecting a request.
These adjustments were not sufficient for the Senate. On 26 September 2023, the legislative proposal was rejected. The parliamentary groups mainly questioned the need for the law. After all, employees can already request a change of workplace under the Flexible Work Act. The employer then needs to consider the request for a change in workplace and consult with the employee if the request is rejected. Moreover, social partners and employers can agree on this in a collective agreement.
Therefore, to include in the law that the employer must be able to indicate that their interests outweigh the interests of the employee did not seem to add much to some parliamentary groups. They felt that such an addition would create more regulatory burden for employers. According to parties in the Senate, employers and employees can simply agree on workplace adjustments themselves. No new legislation is needed for that.
Under the Flexible Work Act, employees can request the employer in writing for a change of working hours, working time and place of work. The condition is that the employee has been employed for at least six months by an employer with 10 employees or more. With regard to a request for adjustment of working hours and working time, the employer may only reject a request for adjustment of working hours and working time if compelling business or service interests oppose this. This condition does not apply with regard to a request for a change in place of work.
The Flexible Work Act does not apply to employers with fewer than 10 employees. It is possible to deviate from this Act if a collective agreement is applicable to the employment contract. In addition, employees may agree in writing with the works council – or in its absence with employee representatives – to deviate from the law for a maximum period of 5 years.
Working from home has become quite common. It is therefore expected for employers to continue to receive homeworking requests. Therefore, it is useful for employers to make clear arrangements with employees in advance about such requests for different work locations. So it is good to lay down arrangements on working from home in employment regulations or staff handbook, for example.
Even if employees are working from home, you as an employer must still fulfill your duty of care and hence ensure a safe and healthy workplace. This applies, regardless of whether the legislative proposal has been rejected by the Dutch Senate.
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