Netherlands: Be Careful in Handling Requests Covered by the Flexible Work Act

Based on the Flexible Work Act (“Wfw” abbreviated in Dutch), an employee can request, among other things, for indefinite employment. The employer is obliged to respond within one month in writing, providing reasons. If the employer fails to do so, the Wfw request is considered granted. This recently happened to the company Coach in a case pending before the Limburg District Court. The following details how the court came to this judgement and what aspects employers should consider when dealing with a Wfw request.

WFW request, what is the legal framework?

 

The basics

On the basis of the Flexible Working Act, an employee can submit a request to change the amount of working hours, working time or work location. Since the Transparent and Predictable Working Conditions Act (2022) came into effect, it has been added that employees can request a form of employment with more predictable and secure working conditions. This includes, for example, a permanent contract, fixed hours scope or more clarity on when employee will be called for an on-call contract.

 

Requirements of request

 

An employee who has been with the employer for at least 26 weeks may submit a Wfw request. This may involve a change in working hours, hours or place of work or a request for more predictable and secure terms and conditions of employment. The employee must submit his request for adjustment of working hours, working time or place of work in writing to the employer at least two months before the intended time for the adjustment to take effect. In doing so, depending on the type of request, the employee should specify the desired scope of work, working hours, place of work. After granting or rejecting a request, a rest period of one year applies before the employee can submit another request

 

Requirements for employer’s response 

If an employee submits a request for adjustment of the amount of working hours, working time or place of work, the employer must respond in writing and provide reasons no later than one month before the intended effective date of the adjustment. For requests for more secure and predictable working conditions, the employer should respond within one month after the request. If the employer does not respond with reasons within this period, the request is considered granted.

An employer can refuse a request to adjust working hours or working time only if there are compelling business interests, such as problems with scheduling, safety, finances, or lack of work.

If less than 10 employees are employed by an organization, the Wfw does not apply to requests relating to working hours, working time and place of work. However, for these employers, the Wfw does apply to requests for more predictable and secure working conditions. In that case, the employer has three months to respond, instead of one month.

 

What is at stake in this case?

The employee is employed by Coach as a sales associate under a fixed-term employment contract. This has been extended twice by Coach. On 20 June 2023, during the term of her third temporary contract, the employee requests that her contract be converted to a permanent contract. On 7 July  2023, Coach informs her in writing that her temporary contract will not be renewed and will end on 8 August 2023. After 8 August 2023, the employee has not worked for Coach.

On 29 October 2023, the employee requests the court to reinstate her employment contract. According to the employee, Coach did not respond to her Wfw request in a timely manner and, therefore, the request should be considered granted. The consequence would be that she would have a permanent employment contract. In principle, a permanent employment contract may not be terminated without employee consent or permission from the UWV or court. Coach takes the position that with its notification of July 7 that the employment contract would not be renewed it has responded to the request indeed.

 

Judgment of the court

The judge rules that Coach’s 7 July 2023 notice cannot be considered a formal response to the Wfw request. This is because this communication did not refer to the Wfw request explicitly. Furthermore, no reasons were included. As a result, the request should be regarded as granted, which would have created a contract for an indefinite period of time. In principle, the employer cannot terminate without the consent of the employee or the UWV’s or court’s permission.

However, the employee in this case waited too long before going to court. In order to take legal action against the employer’s termination, there is a two-month deadline. The employee should have filed her request with the court by 8 October at the latest. In the end, this left the employee empty-handed.

 

Conclusion

Although this case ended in a stalemate for the employer due to the employee’s late action, this ruling illustrates the importance of handling Wfw requests carefully as an employer. The employer must answer in a timely including reasoned manner and must explicitly indicate in the answer that it concerns an answer to the Wfw request.

Source: Limburg District Court (Rechtbank Limburg), 23 April 2024 ECLI:NL:RBLIM:2024:2000.

Key Action Points for Human Resources and In-House Counsel:

Handle Wfw requests carefully:

• Respond promptly (deadlines vary by request type);
• Provide a written response with reasons (compelling business interests required for requests to adjust working hours and work time); and
• Clearly indicate in the response that it pertains to the Wfw request.