On April 14th, 2015 the Dutch Parliament adopted the ‘Act on Flexible Working’ (known more technically as the Wet Flexible Werken 32 889) with the purpose of allowing employees more flexibility in terms of how they organize their work obligations. This new act expands on the existing ‘Act on Adjustment of Working Hours’ legislation ( or in Dutch Wet Aanpassing Arbeidsduur). The date for official implementation of this new act is still to be determined – but it is likely to occur in the midst of this summer.
In particular, this new flexibility will allow employees to request changes in the number of hours they work, their working schedule and their place of work. Employers will have the right to deny changes in the numbers of hours worked and schedule if there are ‘ponderous’ business reasons. The law will provide guidance in this respect.
What is really making news in Holland is the new possibility for employees to ask their employers for an adjustment in their place of work. However, not all requests will be granted. On this point the law requires that the employer must only ‘consider’ an employee’s proposal. In other words this clause gives the employee the ‘right to make a request’ and the employer only ‘an obligation to consider’ the request.
The future of this particular clause has still yet to be realized – but it is likely to become an interesting subject in the Netherlands as the Dutch Courts (under the rule of a fairness clause in the Dutch Civil Code – Article 7:611) have the authority to interpret the employers ‘obligation to consider’ in a wide manner.
The true question is whether ‘considering’ means ultimately taking into consideration the interests of both sides if the answer to the request a ‘Yes’ (except if the employer has a convincing reasons to deny) … or a ‘No’( unless the employee has convincing reasons which cannot be denied). In the end, it will be case law that will show how this will work out in practice.
It goes without saying that honoring a request to (partially) change the place of work – usually from home, but maybe even from elsewhere in the world – may have serious consequences for an employer. In practice it already happens at many places for various reasons (such as to avoid commuter traffic) in order to enable an employee to better balance work and family life… or even just to create more efficiency. There may be many reasons for taking this seriously and not only for the reason that the law abides one to do so.
From a practical standpoint, it would be recommended that employers with operations in the Netherlands create a policy (embodied in their personnel handbooks) on this exact subject matter in order to avoid a tangle of uncontrolled, and growing, set of regulations and rules for dealing with the issue. Involving an employee representative, such as a Works Council – where one exists, from the outset in this process is an obligation.
One must not forget that this new law may also impact employees who are working abroad – or who would like to work from abroad. In this sense an alignment between jurisdictions may be required.
Written by
Marc Vogel
Founding Partner
ARBOR
