Farhana advises international and national entrepreneurs and organisations.
farhana.mahabali@russell.nl +31 20 301 55 55Your employee lives in the Netherlands and wants to work from home while your company is not located there. What do you as an employer have to pay attention to before granting such a request?
These days, working from home or working remotely has become quite common. So you may receive a request of an employee who wants to work from home in the Netherlands, for example in connection with sick family members, whom the employee wants to take care of. But be aware, this may have unexpected consequences if your company is not based in the Netherlands. Does Dutch employment law have to be applied? Do you suddenly have to pay social security contributions in the Netherlands? And how do you ensure that the employee has a good workplace in the Netherlands?
If you have an employee who wants to work from home in the Netherlands, you should take into account that permits may be required for this purpose.
First, the employee must have the right of residence in the Netherlands. If the employee has Dutch nationality or the nationality for a EU/EEA member state or Switzerland, no residence permit is required, nor is a work permit necessary.
If the employee has another nationality, he or she will often need to apply for a residence permit, depending on his or her nationality, position and length of stay. In addition, it needs to be considered whether applying for a work permit is also necessary. In that case, you may need to register as an employer in the Netherlands.
If you have an employee who will be working from home in the Netherlands, Dutch employment law may become applicable to the employment contract. In principle, the employer and employee are free to state in their employment contract which law will be applicable, but mandatory international and national rules of law may render this choice of law inoperative in whole or in part.
If you are a foreign employer based in a EU/EEA member state or Switzerland and your employee is going to work temporarily in the Netherlands from home, in principle nothing will change regarding the applicable employment law. But if the employee starts working structurally from the Netherlands, this will become the place from which the employee performs his or her work, “the habitual place of work”. Despite the choice of law made in the employment contract, under European law, the employer may not deviate from mandatory provisions of Dutch employment law insofar as these are more favourable to the employee than the law declared applicable to the employment contract.
If you are a foreign employer who is not based in a EU/EEA member state or Switzerland and one of your employees wants to work in the Netherlands from home, you as an employer may have to adhere to certain Dutch employment law provisions.
If you are a foreign employer based in a EU/EEA member state or a country with which the Netherlands has a social insurance agreement, and one of your employees is going to work temporarily in the Netherlands from home, this employee remains socially insured in the country where he/she worked. As an employer, you can apply for an A1 certificate from the authority of the country where the social security contributions are paid, which serves as proof that the contributions are paid outside the Netherlands.
Based on European law, an employee is in principle socially insured in the country of employment. However, if you employ an employee who lives in a different EU/EEA member state than where he or she habitually works and who is going to work from home on a structural basis for 25% or more, you must pay the employee’s social insurance contributions in the employee’s country of residence. If that is in the Netherlands, you must pay social insurance contributions in the Netherlands, according to Dutch rules. In that case you may need to register as an employer in the Netherlands.
If you are a foreign employer who is not based in a EU/EEA member state and one of your employees wants to work in the Netherlands from home, the employee’s social security position is determined by concluded social security treaties. If no treaty has been concluded between the country of usual employment and the Netherlands, the national social security legislation of the country of usual employment and the Netherlands will determine where the employee should be socially secured. Due to the concurrence of social security systems, you may have to pay social security contributions not only in your home country, but also in the Netherlands.
If you are an employer based in a EU/EEA member state or Switzerland, the following information obligation applies to you. If an employee is going to work abroad for more than one month, the employer is obliged under European regulations to provide the employee with a statement containing information on:
So there are more difficulties to working from home in the Netherlands for a company from a foreign country than appears at first sight. We therefore recommend employers and employees map out in advance the possible consequences of employees working from home and whether steps/measures needed have to be taken to make working from home possible.
Does one of your employees want to work from home in the Netherlands, but your company is based in another country? We will be happy to give you advice about the options and conditions. You can also contact us if you have any other questions about employment law and in the event of a dispute with an employee. Please contact us:
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