As technology has made remote work possible, working from home and remote jobs are on the rise. Employees seem to have less motivation to come into the office, as they believe to be able to conduct the same work at home or even more.
In the Netherlands, the Flexible Work Act (Wet flexibel werken) makes it possible for employees who are employed by the employer for at least six months to request their employer (that has 10 or more employees) to change the agreed on workplace, for example to a workplace at home. The employee must make his request at least two months prior to the proposed start date and the employer must inform the employee no later than one month prior to this proposed date whether he approves the request or not. If the employer fails to respond to the request, it must be granted. The employer is free to refuse such a request, but does have a ‘duty to consider’ and must substantiate the refusal in writing. Once a year employees can submit a request to work from home. When the request to work from home (based on the Flexible Work Act) has been approved by the employer, there must be important business reasons (e.g. continuous underperformance of the employee) to revoke the consent.
Although allowing employees to work from home may enhance their performance, it is of great importance to lay down rules in this regard in a general working conditions policy to set expectations and to meet Dutch statutory obligations.
Dutch law on health and safety of employees The employer must ensure that the health and safety of employees is protected with respect to all employment-related aspects, also when the workplace is at home. All rules and obligations in this respect are included in the Working Conditions Act (Arbowet), the Working Conditions Decree (Arbobesluit) and the Working Conditions Regulations (Arboregeling). The Inspectorate SZW (Ministerie van Sociale Zaken en Werkgelegenheid) is responsible for enforcing this legislation. When an employer violates this legislation, a fine can be imposed. Furthermore, an employer can be held liable for damages, for example if an employee suffers from RSI due to the work.
Working conditions policy
The employer should have a general working conditions policy in place. As part of the general working conditions policy, the employer must have a policy in place aimed at preventing/limiting employment-related psychosocial pressure. When working from home, it is important for the employer to prevent that employees will experience excessive work pressure. The employer must inform employees on health and safety risks and provide guidance on how to limit these risks. In relation to matters affecting the working conditions policy and its implementation, the employer is obliged to consult the works council or staff representation body. In businesses that do not have a works council or staff representation body established, the employer must consult the employees individually.
Responsible for the workplace at home
The employer is responsible for the workplace at home, which includes: the design of the workstation, the working method, providing tools, etc. The employer must ensure that the employee has an ergonomic chair and a desk at home (and is responsible for the costs) as well as ensure that there is enough (artificial) light at the workplace. Since the employer is responsible for the workplace at home, there should be a (physical) visit by the employer or an health and safety expert to assess whether the workplace complies with rules and obligations as set out in the abovementioned legislation. If this is not feasible, it is also possible to ask the employee to send photos and videos of the workplace at home. The employer is responsible for the costs of making the workplace ergonomically sound and safe.
Furthermore, it is important for the employer to decide if and in what way the employee will be monitored; not only to ensure that employees do their work, but also to monitor in what way the work is performed. Rules on monitoring employees should also be laid down in a policy.
Some practical tips and guidelines for the policy regarding working from home
- clear and open communication towards employees is key;
- outline availability expectations;
- set out in a policy in what way the productivity of employees is monitored;
- enter into an agreement regarding working from home with the employee, including: (i) that the employer is allowed to periodically visit the workplace at home, (ii) the health and safety risk regarding working from home, in what way these can be limited and the breaks the employee should take and (iii) the consequences if employees do not comply with the arrangements in the agreement;
- include in the policy that the workplace at home must be approved by the employer (in writing) prior to an employee starting to work from home; and
- set out any specific requests for working in public places, for example on security (not allowing to use public Wi-Fi) and address that it is forbidden to share sensitive information in public.