Flexible Working Act: Stronger position for employees who want to work from home

On 14 April 2015, the Dutch Senate has accepted the Flexible Working Act, allowing employees of companies in the Netherlands more flexibility in respect of working hours and working from home. With effect from 1 January 2016, employees will be able to ask not only for changes to the number of hours they work, but also changes to the times they are required to work and their place of work.

An employer has to agree with a request to change the number of working hours, unless there are substantial business reasons for not doing so. Case law shows that business interests are rarely considered to be weighty enough. An alternative distribution of working hours as a result of a reduction in working hours also has to be accepted by the employer, unless business interests outweigh the preferences of the employee.

The same threshold applies for a request to change the times an employee works: an employer has to agree, except for when there a substantial business reasons for not doing so. This criterion seems contradictory to the threshold applied in case of an alternative distribution of working hours resulting from a reduction in working hours, as it is more strict.

For requests to change the place of work, an employer has to take the employee’s application into consideration and has to discuss it with the employee if it does not agree. Unlike in the case of a request for changes to the number of hours or to the times the employee works, the Act does not provide that the employer needs substantial business reasons to turn down an application to change the place of work. However, the employer will of course always have to act in accordance with good employment practices and will have to substantiate his refusal.

Employees can now request any of the above after 26 weeks of service instead of after one year of service, as before. An application has to be made two months before the effective date, and if the application is rejected, the employee can try again after one year instead of after two years as was previously the case.

Employers should be aware that their duty of care extends to the employee’s workplace at home; the employer remains responsible for the workstation. Altogether, it will become more complicated for employers to organise their workforce.