As office work is becoming ever more flexible, the call among employees for flexibility is only expected to grow. This trend is also reflected in legislation. At present, it is still rather easy for an employer to reject a request of an employee to adjust the place of work. This will change if the bill of the Work Where You Want Act, presently under discussion in the Dutch Senate, will be adopted.
Flexible Working Act
Under the current Flexible Working Act (Wet flexibel werken, “Wfw”), an employee can request his employer to adjust his place of work. The employer can reject such a request easily. The employer only needs to ‘consider’ the request, to consult with the employee if he rejects it, and to inform the employee in writing of the decision on the request. If the request is rejected, the employer also has to inform the employee of the reasons for the rejection in writing. The Work Where You Want Act will make it harder for employers to reject such requests.
Work Where You Want Act
In April 2022, we already wrote an article about the bill of the Work Where You Want Act, which is an amendment of the Wfw. In March 2022, the Social and Economic Council (‘SER’) issued the advice to adjust the test used to review requests from employees to be allowed to work (partly) from home. As a consequence of this advice, the bill was amended on 05 July 2022. The amended bill is now under discussion in the Senate.
Pursuant to the amended bill, an employee can submit such a request to change his place of work if he has been employed by the employer for at least 26 weeks and if there are at least 10 employees working at the employer. The request should be submitted to the employer at least two months before the desired commencement date. After receiving the request, the employer has to discuss the request with the employee.
If an employee submits a request to change the place of work to i) his residential address (within the EU), or ii) another suitable place of work (within the EU) from where work for the employer is already done regularly at that time (e.g. another branch of the employer), the employer can only reject this request if the employer’s interests must be overridden by the employee’s interests according to standards of reasonableness and fairness. This means that employers always have to weigh the interests in such cases.
If an employee requests to change the place of work to a different location than mentioned above, the employer only needs to ‘consider’ the request and to consult with the employee if he rejects it. In that case, no weighing of interests is required.
All requests for a change of the place of work require the employer to inform the employee of the decision on the request in writing. If the request is rejected, the employer also has to inform the employee of the reasons for the rejection in writing.
Another important requirement is that an employer has to decide on the request in writing ultimately one month before the intended commencement date of the employee's request. If an employer decides too late or not at all, the request will be allowed automatically.
Weighing of Interests
When an employer has to weigh interests, this will be a weighing between the interests of the employer and the individual employee. Therefore employees would do wise to attach good reasons to their request. Then it is the employer's task to ask good follow-up questions about the interests of the employee.
Interests that may play a role for the employer are, for example, social cohesion in the workplace, cooperation within teams, and great administrative or financial burdens for the employer. The interests of the employee, on the other hand, could be personal circumstances, among other things. Examples of such circumstances are an employee's mental health; saving a lot of travel time; or increasing productivity.
What Happens Next?
If the bill is adopted, employees will generally get more freedom to decide on their place of work. However, we cannot call this a carte blanche. Requests for a change of the place of work to the employee’s residential address within the EU, or to another branch of the employer within the EU, will have to be decided on by the employer through a weighing of interests according to standards of reasonableness and fairness. It will be fairly easy for an employer to deny requests to change the place of work to other locations. For most employees, this means that working from a hammock in Mexico is not going to happen.
