Many employees are also available for work outside the agreed working hours. This flexible way of working blurs the boundary between work and private life. In order to limit the psychosocial workload, the private member's bill (initiatiefswetsvoorstel) 'Wet op het recht op onbereikbaarheid' (law on right to inaccessibility, the 'Bill') has been submitted to the House of Representatives. This Bill entails an obligation for employers, as part of the working conditions policy ('Working Conditions Policy'), to have discussions with employees about their availability outside of working hours.

Legal framework

Under the Dutch Working Conditions Act ('Arbowet'), employers are already responsible for the working conditions of their employees. This entails the obligation for employers to ensure a safe and healthy working environment. For this purpose, the employer must provide for an adequate Working Conditions Policy, aimed at, among other things, preventing - and, if this is not possible, limiting - the psychosocial workload. For example, the employer is obliged to draw up a risk inventory and evaluation ('RI&E') in which the risks of the work are set out. The employer must also include in the RI&E a plan of approach (plan van aanpak), including the measures to be taken to reduce the risks.

Aim of the Bill

The Bill provides for an obligation for the employer to enter into discussions with employees[1] about the (risks of) availability outside working hours. If these discussions show that accessibility outside working hours is being perceived as burdensome, these risks and the measures to prevent them must be included in the RI&E. The Bill, therefore, does not entail an explicit right to unavailability.

Sanctions

If the employer does not comply with the obligation to enter into discussions with the employee(s) on the availability outside working hours, or cannot demonstrate that the discussions took place, the Inspectorate of Social Affairs and Employment ('Inspectie SZW') will first issue a warning. After that, the Inspectie SZW may proceed to draw up a fine report. It is therefore, in any case, advisable to draw up a written report of the interview with the employee(s).

Right of consent Works Council

Pursuant to the Works Councils Act, the prior consent of the works council is required for proposed decisions to adopt, amend or withdraw working conditions regulations. If, as a result of the discussions with employees, measures are (to be) taken - in the form of a regulation - to reduce the psychosocial workload of employees, the decision to be taken will also require the prior consent of the works council.

The envisaged date of entry into force of the Bill is 1 January 2021.