Under the Dutch Act on Adjustment of Working Time (WAA) employees have a legal right to request a change in their working time. The WAA is applicable to employers with ten or more employees. Employers with fewer than ten employees are excluded from the scope of the WAA but they are obliged to have their own policy on the matter. Under the WAA an employee with employment for at least one year can request an adjustment of the agreed working time. The adjustment can be a reduction or increase of the working time.
An employee can make an application to change working time once every two years. The request for adjustment of working hours must be made in writing to the employer at least four months before the intended start date of the adjustment. Subsequently the employer must discuss the request with the employee involved.
The employer must grant the employee’s request unless it conflicts with significant company interests. The WAA provides for a non-exhaustive list of such interests which includes:
- The employer cannot get someone else to work the hours that would no longer be worked by the employee
- The adjustment of working hours leads to serious roster or safety problems
- Extension of working hours can be refused if serious financial or organisational problems would arise, for example if the extension would result in exceeding (pre-set) number of full time employees of the division or employee budget or when there is not enough work to be performed.
The employer must inform the employee in writing about the decision made about the employee's request. If the employer rejects the request, the employer must provide the employee with reasons. If the employer fails to decide by one month prior to the date on which the proposed adjustment was scheduled to start, working time will be automatically adjusted in accordance with the employee's request.
The employer could refuse the employee’s wishes as to allocation of hours and request a different spread instead, if and insofar the employer's interests are such that it is reasonable that they take precedence over the employee's own interests.
New legislation in the pipeline
In order to promote flexible working, a legislative proposal has been submitted at the House of Representatives. The legislative proposal aims to convert the WAA into the Flexible Working Act. The key changes that will be introduced if the legislative proposal is adopted are:
- The introduction of a right for employees to request any form of flexible work (other than the current right to request a change in the number of hours) including spreading of working hours and place of work (including a right to work from home)
- A reduction in the periods specified by law for employee requests. First of all, it will become possible for an employee to make an application for flexible working if he or she is employed for six months, instead of currently one year. Secondly, the employee can make an application every year instead of once every two years; and finally, the employee must make the application no later than two months in advance, instead of four months.