- 02 Feb 2022
- Philip Nabben
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 after being isolated for a long time, not everyone’s home situation being well equipped for a home office, 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.
Like in many countries, the Covid-19 pandemic has accelerated the developments in remote and hybrid working in the Netherlands. Before the outbreak of Covid-19 in the Netherlands, 39 per cent 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 per cent (approximately 3.5 million employees). It is expected, firstly, that this new situation of hybrid working is going to further develop and secondly, that it is here to stay.
After the first lockdown, there was a slow movement of people returning to the office. This movement 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)?
New rules and developments regarding remote or hybrid working arrangements
Dutch law does not yet have many rules regarding remote working. The only two pieces of legislation are on Occupational Health and Safety (OH&S) and the Flexible Working Act.
OH&S 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 his duty of care by having the home office checked remotely by an expert from the OH&S service or asking the employee to send photos of their home working place to the OH&S 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. Such home working agreement should ideally also include a clause allowing the employer to periodically check the home workplace (through the assistance of the OH&S office) and include a clause making sure the employee keeps the home office in the pre-approved condition. The use of such 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 in case the home working space is inspected by the Labour Inspectorate, or liability risks in case an employee’s health is suffering as a direct result of a home working space that is not OH&S compliant (eg, an employee with neck problems due to a non-compliant desk and/or chair).
Right to work remotely
Based on the Flexible Working Act, employees working more than six months for their employer can ask their employer (1) for the adjustment and spread of their working hours and (2) for the adjustment of 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 heavy test. For the adjustment of the 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 (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 for the social developments within the phenomenon of hybrid work.
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: 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 home working agreement, employers are recommended to set up 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. In such a policy, both the possibility to work from anywhere abroad for too long, and the possibility to work in a public place, should be restricted and well regulated.
Temporary Act on widening the use of corona-check app
The government currently still advises people to work from home as a result of the recent disturbing raise of Covid-19 infections. At the same time, the government is now proposing new and temporary legislation which broadens the possibility, under certain circumstances, for employers to ask their personnel to show the government issued corona-check-app: only if the employee is able to show a green checkmark on this app, meaning they are either vaccinated or recently recovered or tested negatively, will they be allowed on the employer’s premises. 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.
Monitoring, accessibility and privacy
With the rise of remote working came the wish of many employers to be able to remotely monitor an employee’s performance, for example, by taking a screenshot of the employee’s computer screen every 10 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 privacy invasive and are deemed to be in breach of the General Data Protection Regulation 2016/679 (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 such 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: 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 the growing concern of an increased imbalance between one’s working hours and private life. In some countries, there is already legislation on this matter (eg, in France, le Droit á la Déconnection) and some international companies have introduced it into their policies. In the Netherlands, a similar legislation has been proposed: this 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, the discussion about the 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.
Taking all points of interest into account, it can be concluded that the current legal framework is not well equipped for (the rapid development towards) hybrid working. 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 that grants employees certain 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 want 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 the (un)accessibility of the employee when working remotely, in order to safeguard the 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 safely use devices and internet from home, to safeguard the company’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 setup of a hybrid working policy.
Finally, it is recommended to make hybrid work part of the employee’s performance cycle. This is one of the means available to the employer to assess whether the duty of care is being met and to evaluate whether working elsewhere benefits the individual employee’s productivity.