“Will I see you back at the office tomorrow?” The status quo before and, frankly, again after corona. Whereas, the Dutch newspaper FD rightly headlined: Less travel time, fewer traffic jams, more space to plan the working day yourself as well as to do some laundry during office hours: on the benefits of working from home, most workers agree. But do employers also offer this space? The ‘Work Where You Want’ act still seems relevant. Last Tuesday, 12 September, the plenary debate took place in the Second Chamber and the law will be voted on 26 September 2023.
WHAT ABOUT NOW?
The current law (Flexible Working Act) provides that if an employee wants to change his/her place of work:
• the employee can submit a request to the employer;
• this request must be made at least two months in advance;
• under the condition that the employee has already worked for this employer for six months.
After submitting the request, the employer must consult with the employee. No later than one month before the intended effective date of the request, the employer must respond in writing. The employer may reject the request on any grounds. Unlike the request for adjustment of working hours or working time, there are no substantive criteria on the basis of which the employer may or may not reject a request for a change in the workplace. Only a ‘duty to consider’ and written feedback on this is sufficient.
PLEASE NOTE: This regulation only applies to employers with 10 or more employees and – spoiler alert – the law will also only apply to employers with this minimum size.
WHAT DOES THE LAW REGULATE?
Can employees expect an absolute right? No. The above-mentioned procedure of making a request for a workplace adjustment will remain the same. Only the substantive grounds on which an employer may reject the request change: the request will be granted unless reasonableness and fairness oppose the adjustment (including the effective date and size). In short: yes, unless. The employer has a duty to state reasons and the burden of proof also lies with the employer.
The law aims to approach an employee’s request to change the workplace in a similar way to a request to adjust working hours or working time: an employer grants the employee’s request, provided that:
• the desired workplace is within the EU and is either (a) the employee’s home address or (b) (one of) the employer’s work locations; and
• reasonableness and fairness do not dictate otherwise.
What exactly constitutes the standard of reasonableness and fairness? According to the legislative history, it is not a settled criterion. Do we now know exactly what it means? No, the law does not prescribe that and will vary from situation to situation.
In practice, it means that working from home is expected to become easier. If an employee requests another place of work, the employer will be less likely to comply with this request because the current system will continue to apply for this: the employer may reject the request on any ground. So, despite what the name of the law suggests, it does not include that nice coffee shop around the corner.
WHAT DOES THE LAW CREATE?
The law facilitates a dialogue between employer and employee. With the law, the initiators want to steer the conversation between employer and employee on the possibilities of adapting the workplace. In this way, they want to offer customisation. After all, the (ability to) grant a workplace adjustment strongly depends on the employee’s type of work and the impact of the adjustment on that work. The relevant sector, position, education and age can also play a role.
It remains to be seen what the First Chamber will decide. In the meantime, has your company received a request from an employee or is your company planning to actively inform employees about this as part of employer branding? The lawyers at Workx are happy to think along with you.