Written by: Philip Nabben, Bronsgeest Deur

As remote and hybrid working have expanded dramatically during the pandemic, the legal framework regulating them in the Netherlands has lagged behind and employers may need to fill the gap with their own policies.

As a result of the sudden and unprecedented lockdown at the beginning of 2020 in one country after the other, most employees had to rush home and work from there. In the Netherlands a complete lockdown started mid-March 2020, so we have now been working remotely for over one and a half years. Most employers’ concern in the beginning was: how will our staff keep this up?

As it turned out, most employees did manage to keep it up, and did so quite well. In fact, the lockdown has clearly showed the possibilities and advantages of remote working (no more time wasted commuting, more opportunity to organise one’s own working day, etc.). But there were also concerns, for example, about employee wellbeing during long periods of isolation, not everyone’s home situation being well equipped for home working, and so on. Sometimes it is just the simple things that employees miss, like the cups of coffee and the ‘coincidental encounters’ with other colleagues.

As in many countries, the COVID-19 pandemic has accelerated developments in remote and hybrid working in the Netherlands. Before the outbreak of COVID-19 in the Netherlands, 39% of the working population occasionally worked at home. Since then, the share of people working remotely has increased dramatically. By the end of 2020, this increased to 48% (approximately 3.5 million employees). It is expected, firstly, that this new situation of hybrid working will develop further and secondly, that it is here to stay.

After the first lockdown, there was a slow movement of people returning to the office. This raised a lot of new questions on the concept of hybrid working, for example:

  • How should businesses define hybrid working?
  • How do employers monitor compliance with health and safety rules if people work remotely?
  • How can employers register remote working hours?
  • How can employers safeguard cybersecurity from a distance?
  • Can/should employers monitor the performance of their personnel working remotely?
  • Is the Dutch legislator lending a helping hand (or should they)?

Dutch law does not yet have many rules regarding remote working. The only two pieces of legislation are on Occupational Health and Safety (OHS) and the Flexible Working Act.

Occupational health and safety

OHS legislation requires employers to ensure a safe and healthy work environment for its employees. This obligation extends to remote working, although with less strict rules: the employer must ensure that an employee has an ergonomic home workplace. Because home-based work often takes place behind a computer screen, additional obligations apply, such as taking regular breaks. The employer is also obliged to check whether the home office complies with the applicable working conditions requirements (chair, desk, sufficient light, good ventilation, etc.).

An employer can fulfill its duty of care by having the home office checked remotely by an expert from the OHS service or asking the employee to send photos of their home working place to the OHS service for their inspection and approval. Finally, it is advisable to make use of a specific ‘home working agreement’ where suggestions such as taking regular breaks are confirmed. A home working agreement should ideally also include a clause allowing the employer to periodically check the home workplace (through the assistance of the OHS department) and include a clause making sure the employee keeps the home office in the pre-approved condition.

The use of these types of home working agreements is not only recommended because of the general duty of care of employers, but also to limit the risk of being penalised if the home working space is inspected by the Labour Inspectorate, or the risk of liability in the event an employee’s health suffers as a direct result of a home working space that is not OHS-compliant (e.g. an employee with neck problems due to a non-compliant desk and/or chair).

The right to work remotely

Based on the Flexible Working Act, employees who have worked more than six months for their employer can ask their employer:

  • for the adjustment and redistribution of their working hours; and
  • for adjustments to the workplace.

Regarding the adjustment of working hours, the employer can only reject a request if it has weighty business-related objections. From case law, it is recognised that this is a hard test to meet. For the adjustment of working place, this test does not apply: the employer only has a duty to consider the request to work remotely.

The COVID-19 pandemic has accelerated the thought process regarding working from home, resulting in proposed legislation named the ‘Work Where You Want Act’. This bill aims to give the same weight to a request for remote working as the request for adjustment of working hours (which will be granted unless the employer can demonstrate weighty related objections). The author believes that, however well intended this legislative proposal is, it is premature to give employees a legal means of pressure without waiting to see how social developments within the phenomenon of hybrid work play out.

Furthermore, the bill does not consider a number of important, complex consequences of remote working when it is not done at the employee’s home. For example, remote working could also take place at the local Starbucks, with open Wi-Fi and an open laptop, triggering all kinds of cybersecurity risks. Remote working could also take place in the employee’s vacation home outside the Netherlands. Doing this for a long time triggers all kinds of additional risks: the labour law system of the country where the vacation home is situated can become applicable next to the originally chosen law if the remote working takes place from abroad for long enough. In addition, the employee could fall under the foreign social security system and become liable for tax in the new country of residence.

This is why, in addition to the use of a homeworking agreement, employers are recommended to establish a home/hybrid working policy, describing the obligations of both the employer and the employee, in order to ensure that the employee works from a safe home office. This policy should restrict and clearly regulate the possibility of working from anywhere abroad for long periods, and the possibility of working in a public place.

Widening use of Corona-check app

The government currently still advises people to work from home as a result of the recent disturbing rise in COVID-19 infections. At the same time, the government is now proposing new, temporary legislation which broadens the possibility, under certain circumstances, for employers to ask their personnel to show the government issued corona-check-app. Employees will only be allowed on the employer’s premises if they can show a green checkmark on this app, meaning they are either vaccinated, have recently recovered or tested negatively. Given the heated debate about this subject, it remains to be seen if, and to what extent, this proposed legislation will be accepted by the Dutch Parliament.

Widening use of Corona-check app

With the rise of remote working, many employers expressed a desire to be able to remotely monitor an employee’s performance, for example, by taking a screenshot of the employee’s computer screen every ten minutes or using monitoring software that allows employers to watch the number of clicks and typing movements or keystrokes.

Apart from the fact that these types of monitoring are extremely invasive of privacy and are deemed to be in breach of the GDPR (and Article 8 of the European Convention on Human Rights) if not used with extreme reticence, employers should ask themselves whether they are on the right track using these remote monitoring means. Can the quality of remote work be measured by software at all? What do keystrokes tell us about someone’s work? It is very possible that someone can work much more efficiently when working from home (no travelling time, undisturbed by colleagues, etc). There are many employee-friendly alternatives to using monitoring software that evaluate quality and quantity instead of time worked. This means measuring by tasks completed and their quality, rather than by hours spent.

Work-life balance and the right to disconnect

In the beginning of 2021, the European Parliament suggested legislation on the ‘right to be digitally unreachable’. This suggestion was obviously linked to growing concern at the increased imbalance between working hours and private life. In some countries, there is already legislation on this matter (e.g. in France, le droit á la déconnexion) and some international companies have introduced it into their policies.

In the Netherlands, similar legislation has been proposed. The proposal provides for a mandatory conversation between employer and employees about not having to be available outside working hours. Employers can hold this discussion with trade unions, the works council, employee representatives or with individual employees. Within one year after the potential introduction of the law, these discussions about employee availability outside working hours must have taken place.

It remains to be seen how the further legislative process will unfold. Apart from the information that the process is pending, not much is clear yet about the timing of this process. In any event, it can be concluded that the topic of being offline is on the Dutch (and European) political agenda.

Conclusion

Taking all points of interest into account, it can be concluded that the current legal framework is not well equipped to regulate hybrid working and its current rapid expansion. The author’s view is that the proposed ‘Working Where You Want Act’ does not fill this gap in the right way. Instead of focusing on legislation granting employees specific rights, employers are recommended not to wait for the legislator and develop a view on how to define the concept of hybrid working and how it fits in their particular type of business. Based on these views, employees should set up a policy that gives a clear view on how their business is going to proceed.

On top of that, employees who are either allowed or encouraged to work from home (depending on how the business wants to approach this), should sign a proper home working agreement, to make sure their home working place is safe. It is also advisable to make agreements about employees’ (un)availability when working remotely, in order to safeguard work-life balance, and to ensure compliance with the Working Hours Act.

Last, but not least, it is advisable to make a policy on how to use devices and internet from home safely, to safeguard the organisation’s confidential information and any and all personal data that is being processed remotely.

If the business has a works council, they should be involved in (parts of) the establishment of a hybrid working policy.

Finally, it is recommended assessment of hybrid work becomes part of the employee’s performance cycle. This is one of the means available to the employer to assess whether its duty of care is being met and to evaluate the impact of working elsewhere on the individual employee’s productivity.