Back in March 2020, we still thought compulsory home working would only last a few weeks. But after more than a year, it is still a daily reality for many of us. Although the green light has been given for working in the office (provided one-and-a-half metres away), working from home remains the norm for many employees. And by now, not only is working from home fully established. A lot of work is also done from places other than home. For example, one of our lawyers recently worked remotely from sun-drenched Ibiza for a while.
Although many employees now long for the cosiness of the office again, surveys show that many employees like working from home and that a large proportion of employees would like to continue working partly from home after the Corona pandemic. As no right to work from home was yet enshrined in law, an initiative proposal was submitted to the Lower House by D66 and GroenLinks in January this year: the bill “Work Where You Want”.
WHAT DOES THE BILL REGULATE
Submitted to the Lower House on 27 January 2021, the Work Where You Want Act, seeks to amend the already existing Flexible Working Act, the law that currently regulates requests to adjust working hours and working hours.
If passed, the bill will soon give employees a legal right in principle to work from home. Employees’ requests for ‘adjustment of work location’ will then be treated the same as requests for adjustment of working hours or working hours. In other words, employers will then only be able to reject such a request if there are compelling business or service interests.
COMPELLING BUSINESS OR SERVICE INTERESTS
But what then are compelling business or service interests? According to the Flexible Working Act, this is in any case the case if there are serious problems with regard to safety or technical scheduling. Furthermore, the concept of compelling business or service interests is a criterion that crystallises in case law in particular. Also in the case of working from home, the determination of whether this is the case will mainly come down to tailor-made solutions in which the specific circumstances of the case must be considered. The type of job, but also the sector, age and education level may play a role. In any case, based on the current wording, it will be less easy for employers to refuse an employee’s request to work from home than how it is currently regulated.
Might it soon be legally possible to choose the beach in Ibiza as an alternative work location? No. The bill does not go that far. Employees can only choose between working from the address known to the employer as their home address, or working from the employer’s work location, when requesting an adjustment of the workplace. An employee who wants to work from the beach or a cottage in the woods, even if the bill is passed, will really have to coordinate with his employer in proper consultation. A missed opportunity as far as we are concerned.
OTHER POINTS OF INTEREST
As with a request to adjust working hours, requests to work from home must be submitted to the employer two months before the intended effective date. An employee does not need to give further reasons for the request. Instead, the employer is obliged to consult with the employee and must communicate the decision to the employee one month before the intended effective date. If the request is rejected, the employer must give reasons why it is rejected. As stated above, an employee’s request will in principle be honoured unless the adjustment, including the starting time and extent, is against substantial business or service interests. This is only different when it concerns a small employer (i.e. an employer with fewer than 10 employees).
The Work Where You Want Act is a step towards a legal right to work from home that employees generally seem to like. Accordingly, the explanatory memorandum to the proposal points out that employee welfare can be improved by working (more) from home. PwC has researched that the tipping point is so at three working days at home.
The initiators have also pointed to the positive effect that permanent (partial) home working will have on the environment in the longer term. In fact, PwC’s study would also show that, for example, one more day of working from home for half of the working population results in 434.1 million kilos less CO2 emissions. In addition, some 170 million kilos of emissions are saved by the reduced use of office space. In comparison, this is equivalent to driving almost two billion kilometres by car (or over 2,500 times to the moon and back or not producing 21,705,000 kilos of meat).
All in all, then, there are plenty of arguments in favour of enshrining a right to work from home in law. The question is, however, whether the proposal will make it because the past year in particular has shown that remote working does not need a legal basis at all and that many employers and employees are already managing to make good agreements among themselves about it. Time will tell. We will of course keep you informed of further developments.