Act ‘Working Wherever you Want’
As a result of COVID-19, working from home has become the (temporary) norm. Research shows that many employees have positive experiences with working from home. The positive effects are also noticeable for employers. In order to facilitate working from home after the COVID-19 crisis as much as possible, the proposed legislation ‘Working Wherever you Want’, was submitted for internet consultation on 19 November 2020.
On 12 March 2020, the government announced that, because of the COVID-19 virus, everyone had to work from home as much as possible. Currently, working from home is still the (temporary) standard for many people. Research shows that more than half of the employees who work from home have positive experiences with this ‘new standard’. Approximately 40%-60% of the employees who work from home expect to do this more often after the COVID-19 crisis.
Currently, in the event that an employee requests to (partially) change the workplace, for example to work from home one day a week, the law provides that the employer has the obligation to consider the request but the employer may subsequently reject such request on any grounds. Under certain circumstances, a change of work location can be enforced, but this is currently based on a different legal basis. Such enforcement currently may arise from the requirement of good employment practice (Article 7:611 of the Dutch Civil Code), the employer's power to give instructions to the employee (Article 7:660 of the Dutch Civil Code) or the employer's general duty of care (Article 7:658 of the Dutch Civil Code).
The Act ‘Working Wherever you Want’ (Wet Werken Waar je Wil, the Act) was submitted for internet consultation on 19 November 2020. The Act amends the Flexible Working Act (Wet flexible werken, the Wfw). The Act is inspired by the rationale of the initiators that the right to work from home and the right to work at a work location are equally important. The Act proposes that an employee's request to adapt the workplace should be treated in the same way as a request to adapt the working hours or working time. The legislative proposal concerns an amendment of Article 2 of the Wfw. The position of the employee to actually make a choice between working from home or working on location is thus strengthened, since it is now proposed that the rejection of the employee's request must be justified by the employer and can only take place if there are important business or service interests involved. As a result, the aim is to give employees more freedom to choose how they would like to organize the balance between working at a work location and working from home.
Various studies that have been carried out with respect to working from home, led to the conclusion that a balance between working partly from home and partly at the work premises is preferred by most employees. Research by the FNV also shows that almost 40% of the interviewees indicate that they are more productive and are better able to focus on their work when working from home. The elimination of time spent travelling to the work location is also experienced as positive. Furthermore, working from home has a positive impact on the environment (reduction of commuting and a reduced use of office space).
The Act proposes that an employee's request to adapt the workplace should be assessed and considered in the same way as a request to adapt the working hours or working time. This would mean that rejection of the employee's request of adaption of the place of work would have to be substantiated by the employer and the employer may only reject such request if there are serious business or service interests involved. If the request is refused, the employer must state the reasons why there are compelling business or service interests involved. According to the (current wording of the) Wfw, this includes serious envisaged issues with respect to the safety or with respect to scheduling within the company of the employer.
Scope of the Act
Employers with less than ten employees fall outside the scope of the Act. It is also possible to deviate from the proposed legislation if the employment agreement is subject to a collective labour agreement that includes a relevant provision with respect to the workplace. If no collective labour agreement applies (or the collective labour agreement does not contain a relevant provision), the employer may deviate from Article 2 Wfw (the Article in which the Act will be implemented) for a maximum period of 5 years by written agreement of the works council (or the employee representative body).
Working Conditions Act
Lastly, working from home does not interfere with the employer's duty of care. In the event of working from home, the home workplace is considered to be the workplace within the meaning of Article 1 paragraph 3 under g of the Working Conditions Act (Arbeidsomstandighedenwet). Therefore, even if the employee works from home, the employer must ensure a safe and healthy workplace. However, employers are in that case subject to an alleviated regime, because working from home can be seen as 'place-independent work', as a result of which certain occupational health and safety obligations do not apply to the employer. Though, the employer must always ensure an ergonomic workplace. The costs incurred for the benefit of an ergonomically designed workplace may not be at the expense of the employee. This remains unchanged on the basis of the proposed wording of the Act.
The legislative proposal had been open for internet consultation until 18 December 2020. Interested parties had the possibility to respond to the proposal and 23 responses have been submitted. The submitted responses will be assessed and may eventually lead to an amendment of the legislative proposal.
Klaas WiersmaPartner Attorney at law
Klaas Wiersma, attorney at law, is the chairman of the Employment & Benefits practice group in the Netherlands. He has over 20 years’ all-round experience in employment law, with a particular focus on the employment aspects of, mostly international, M&A-deals, co-determination procedures, restructurings and collective dismissals, and cross-border employment.T: +31 20 578 59 60 E: email@example.com