The Employee’s Workplace & Working From Home
Since the start of the corona pandemic, the Dutch government advised employees to work from home as much as possible. Employers and employees are expected to be flexible in approaching this because of the government’s advice. Below, we take a look at how this fits in with the Dutch legislation.
The location of an employee’s workplace is mentioned in the employment contract or in the terms of employment. The term workplace is defined in the Dutch Working Conditions Act as ‘any agreed place that is or tends to be used by the employee in connection with the performance of work’.
Can an employer require employees to work from home?
Employers have a duty to protect employees against risks at the workplace and take care of them. For example, exposure to the coronavirus can be seen as a risk. To protect employees, an employer can take measures by offering the opportunity to work from home if this is deemed possible. Because of the duty to protect the employees, the employer can therefore certainly require employees to work from home under the current circumstances.
Request for adjustment of workplace
Under the Dutch Flexible Work Act (Wfw), employees are able to request for an adjustment of the workplace as mentioned in the employment contract or in the terms of employment. The Dutch Flexible Work Act does not apply to employers with less than 10 employees.
The condition for a request regarding the adjustment of the work place are:
- the employee must be employed by the employer for at least six months (26 weeks).
- the request must be submitted in writing to the employer at least two months before the intended effective date. The request must state the effective date and the desired place to work.
If the employer rejects the employees request, the employee may only submit a new request after one year.
The employer must respond to the request within one month before the intended start date of the amendment. If the employer does not respond in time, the employees’ request will be considered to be approved.
After the receipt of a request, the employer must discuss the request with the employee. The employer is free to refuse such a request as long as it can be substantiated. The request must of course be seriously considered but it remains a ‘duty to consider’.
Working from home after the coronavirus crisis
It is not clear whether the situation outlined above will continue as it is. On 27 January 2021 a bill has been filed, called the ‘Work Where You Want Act’. According to this bill employees will have more freedom in organizing the balance between working at the workplace and working from home. The proposal states that an employer may only reject a request for adjustment of the place of work (e.g. working from home) if there are substantial business or service interests at stake. Additionally, the desired workplace must lie within the EU territory. In this case, the standard answer will be ‘yes, unless..’ and a rejection of the adjustment will be less likely. It is not clear at this moment whether this bill will be implemented, but we will keep you informed about any further developments.
The workplace has a larger impact on employees’ life than generally thought. Research has shown that working from home can contribute to a better work-life balance, better performance and motivation of employees, which can contribute to employees’ productivity and efficiency. A request for an adjustment of workplace is therefore worth consideration and the employer can at least discuss possible alternatives that would satisfy the wishes of both the employee and employer. If, however, an employee would work from home outside the Netherlands, this may impact tax and social security obligations. We strongly advice to check this situation with a tax or legal advisor.
Do you have questions about the workplace of your employees, or about working from home? Please feel free to contact our specialists.