Netherlands: The Legislative Proposal Working Where You Want Act

Author: Lydia Milders

On 5 July 2022, the (amended) legislative proposal Working Where You Want Act (in Dutch: Wet werken waar je wilt and hereafter referred to as: the “legislative proposal”) was adopted by the House of Representatives. The legislative proposal aims to give employees more freedom to choose between working at the office or from home. In this blog you will read what this legislative proposal entails and what it means for employers and employees if the legislative proposal is also adopted by the Senate.

Flexible Working Act

Currently, an employee has the possibility – based on the Flexible Working Act (in Dutch: Wet Flexibel Werken and hereafter referred to as: the “Act”) – to request an adjustment of the workplace. The Act defines the workplace as ‘any agreed place which is or usually is used by the employee in connection with the performance of work’. This means that an employee can request the employer to allow him/her to work from home. However, it is currently quite easy for the employer to refuse such a request. The Act only requires that the employer takes the employee’s request into consideration, consults with the employee and, if the request is refused, informs the employee of the reasons thereof in writing. The legislative proposal changes this.

The legislative proposal

The purpose of the legislative proposal is to give the employee more influence on the place where the work is performed: at a workplace designated by the employer or at home. This influence is created in the legislative proposal by tightening the statutory rules for refusing a request for adjustment of the workplace.

The original legislative proposal only allowed the employer to refuse a request for adjustment of the workplace (within the European Union) if the employer had a substantial business or service-related interest in doing so. The legislative proposal amended and adopted on 5 July 2022 – in accordance with the Social and Economic Council (in Dutch: Sociaal-Economische Raad) advisory report ‘Hybrid Work’ – provides for a less strict test. In short, the amended legislative proposal regulates that a request for adjustment of the workplace (within the European Union) must be tested by the employer against the standards of reasonableness and fairness. If it follows from this balancing of employer and employee interests – in view of all the circumstances of the case – that the interests of the employer outweigh the interests of the employee, the employee’s request may be refused. The amended legislative proposal would thus meet the strengthening of the employee’s control, without prejudicing the employer’s interests by enabling customization.

The legislative proposal will now be submitted to the Senate. Further debating will take place after the parliamentary summer recess. The intended date of entry into force is yet unknown.

Key Action Points for Human Resources and In-house Counsel  

• Currently, an employee has the possibility – based on the Flexible Working Act – to request an adjustment of the workplace. This means that an employee can request the employer to allow him/her to work from home. However, at the moment, it is quite easy for the employer to refuse such a request. The legislative proposal Working Where You Want Act – which was adopted by the House of Representatives on 5 July 2022 – changes this. The legislative proposal aims to give employees more freedom to choose between working at the office or from home.