As per 1 January 2016, the Flexible Working Hours Act (the “FWH”) will enter into force. The FWH seeks to make the combination of work and private life easier.

At present, an employee can only request the employer to change his working hours (i.e. request for more or less hours). As of 1 January 2016, employees can also request a change to their working times and workplace (e.g. work from home). Employers have to agree to a request for an adjustment to working hours or working times, unless there are compelling business interests which prevent this. For example, problems with security, work schedules or financial and organisational problems. No compelling business interest is required when the employer refuses a request to change the workplace, but the employer must consult with the employee before refusing such request.

The request

  • A request can be filed following a period of 6 months’ employment before the envisaged commencement date. At present, a request may only be filed after one year of employment.
  • If the request is refused, the employee can file a new request after one year. At present, a request can only be filed once every two years.
  • The request must be submitted in writing at least two months before the envisaged commencement date. At present, this is four months.
  • If unforeseen circumstances occur (such as the sudden illness of a family member), the requirement that the employee must be employed with the employer for at least 6 months, or the limit of one request per year, or the term within which the request must be filed can be deviated from.
  • The employer must set the distribution of working hours in accordance with the wishes of the employee. However, the employer can alter the distribution of hours if there is an interest that outweighs the wishes of the employee in light of reasonableness and fairness.

Risk

If one month before the envisaged commencement date the employer has not responded to the employee’s request, the new working hours, working time or workplace will be implemented as proposed by the employee.

Scope

Employers employing less than 10 employees are excluded from this statutory scheme. However, those employers are obliged to make their own arrangements regarding the right of employees to adjust working hours.

What action is required?

Where an employer grants permission to work from home, it is advisable to check whether the home office complies with the Working Conditions Act.