The Netherlands government has taken a step closer to giving employees the right to work from home by approving legislation that requires employers to consider home working requests.
On 5 July, the lower house of the bicameral parliament of the Netherlands passed the legislation, which needs approval from the Dutch senate before it comes into force.
Under the new legislation, employers would need to consider employee requests to work from home if the type of job they do allows them to work away from the office.
Long before the pandemic shifted global attitudes on flexible working, including home working, the Netherlands has had a progressive approach towards different work patterns.
According to Eurostat data reported on by the BBC in 2020, 14.1% of the Dutch workforce worked from home in 2019 compared to around 4.7% in the UK and 5.4% for the European Union average for 27 countries.
One of the reasons why the Netherlands has led the way on home working is the very high percentage of homes that have high-speed internet access. According to the BBC, another reason why home working has taken off in the Netherlands is the country’s high proportion of self-employed workers who can work successfully without needing to commute to a dedicated office space.
The wide-scale, global move to home working during the pandemic prompted many employees to reassess their future working arrangements. However, despite many individuals in the UK preferring to maintain the flexibility that home working offers, an increasing number of employers are now demanding that staff return to the office.
As Astra Emir, author of Selwyn’s Law of Employment, points out, ‘there is currently no legal right to work from home or to be granted another type of flexible working – unless a person’s contract of employment says otherwise’.
Under UK law, all employees do have a legal right to request flexible working if they have worked for the same employer for at least 26 weeks.
According to Gemma Dale, a lecturer at Liverpool John Moores University and author of Flexible Working, the main difference between the UK’s current legal position and the Netherlands is that British employees can make a request for any form of flexible working, whether that is location-based flexibility or time-based flexibility.
However, as Astra explains, UK employees are only allowed to make one request in any 12-month period for a variation to their working arrangements, which not only covers home working but also other contractual changes such as hours, times and place of work.
This application, she explains, has to be in writing, stating the change applied for and the date the employee wants this to take place. Importantly, the application needs to explain what effect, if any, the proposed variation will have on the business and how it may be dealt with.
The only obligation that the employer has, Astra continues, is to consider the request in a reasonable manner.
In fact, as the Advisory, Conciliation and Arbitration Service (ACAS) points out, employers do have a legal right to turn down requests if they believe there is a valid reason for doing so. This could be, for instance, that they believe the option of home working could have a negative effect on the business’ ability to meet customer demand.
UK law dictates that employers normally need to notify the employee of their decision within three months. If they accept the application, then the change will be permanent, says Emir. If the employer declines the application, however, the employee can pursue the matter further through a number of channels, including at an employment tribunal.
Last year, the Department for Business, Energy & Industrial Strategy ran a consultation seeking views on proposals to reform the Flexible Working Regulations 2014), which would affect both employers who receive flexible working requests and individuals who are looking to change their contracted working arrangements.
However, as Nicholas Le Riche, partner at BDB Pitmans, notes, the proposals didn’t go as far as some observers had hoped.
‘While the right to request flexible working could be made from the first day of employment, the proposals didn’t introduce an automatic right to work flexibly,’ he said.
Gemma told IOSH magazine that there is almost no prospect of a right to work from home being introduced in UK law.
‘Remote work could only ever be decided on a case-by-case basis by organisations, taking into account the responsibilities and requirements of any particular job role,’ she said.
‘Given that our domestic legislation already provides a similar right – it just doesn’t state remote/work from home specifically – there is also no real need to amend legislation in this way.’
Bearing in mind that many employees were able to demonstrate that they could carry out their job roles successfully from home during the pandemic, Le Riche believes it may be difficult for employers to refuse this type of flexible working.
‘Repeated surveys have been very clear that employees will leave their jobs if they cannot get the flexibility that they deserve,’ added Gemma.
‘Organisations need to be very clear now about their remote or hybrid work opportunities when recruiting. They do not need to wait for legislative change. The law on flexible working represents a statutory minimum – employers who want to attract the best talent can and should go beyond this. Offering the right to request flexible working from day one is a good policy change – many prospective employees just won’t wait that long to find out if they can work in a flexible way.’
Gemma added that organisations that insist employees return to the office when there is no clear need for them to do so might find that this results in critical business issues – retention, an inability to recruit top talent, as well as reduced employee engagement and motivation.
Kevin Bridges, partner for Pinsent Masons LLP, told IOSH magazine that in any scenario where home working is being considered, employers still had obligations in relation to workers’ safety and health. Regardless of whether a home, workplace or hybrid model is used, this obligation includes a requirement to report injuries and dangerous incidents, he added.
‘In a clear signal to employers that it expects equal cognisance to be taken of the safety and health of home workers, the Health and Safety Executive (HSE) late last year issued updated guidance on working from home, underlining employers’ responsibilities to their staff outside the office,’ he said.
‘In particular, the HSE’s new framework highlights the need for businesses to consider the potential impact of home working on employees’ mental health, alongside safety issues like their working environment and equipment requirements, underlining that working from home may not be suitable for everyone.’
IOSH magazine spoke to Edith Nordmann, managing partner, attorney of law for ACG International in the Netherlands, about the Dutch Initiative Bill on Home Working.
What does the Dutch proposal cover and how does it compare to the UK?
‘With this “Initiative Bill on Home Working”, the idea is to ensure that employees have more freedom in terms of organising the balance between working at work and working at home (remote working). At present, however, the right to adjust one’s place of work is less well anchored in law than the right to adjust one’s working hours or hours of work. The bill’s initiators want to give workers equal rights so they can decide their place of work. This also reflects the changing spirit of the times following the obligations to work from home during COVID-19 lockdowns.
‘For this reason, this bill proposes to treat a request from the employee to adapt the workplace in the same way as a request to adapt the working hours or working time. It proposes to amend the Flexitime Act (Wfw) to make it possible for a request for an adjustment to the workplace to be treated in the same way as a request for an adjustment to the working hours or working time.
‘So, even though the bill is called “Initiative Bill on Home Working”, it covers remote working in general, not merely working from one’s home address.
‘It is important to note that the bill does not grant anyone an absolute right to work remotely. It merely gives an employee a more equal standing when requesting to work from an alternative location (remote working). At the moment, the employer can simply refuse the request.
‘If the bill – as it is – passes the Senate, this will result in employers having to give a compelling reason why the request cannot be granted.
‘The bill stipulates that the request can only be made by a person who has been employed at the company for at least 26 weeks, which is similar to UK.
This new legislation, however, shall not apply to companies with less than 10 employees.
‘Any (potential) employee is allowed to submit a request to work remotely, even if the company employees 10 or more employees. If the employer agrees, then the new working arrangement can proceed.
The new legislation will regulate when a request has been denied/when the employer is considering whether to deny the request.
On what grounds can an employer deny the request?
‘Denial is possible in the following situations: the desired workplace is not safe or suitable; working remotely causes issues with the work schedule; and the work cannot be performed from somewhere else.
‘In relation to this last point, a good example is a teacher who requests to work remotely. The job itself mandates the teachers to be in a classroom when teaching (except for the online teaching like during Covid lockdowns). However, the preparation/administration or other activities (without students) could be done remotely.
‘As the law currently stands, the school’s principal could just refuse the request. However, once the bill has passed the principal shall have to present a solid argument to refuse the alternative work location.’