Can an employer require employees to work from the office at least two days a week? The recent court ruling concerning Booking.com has sparked considerable debate. For many, the answer seems obvious: surely requiring two days of office attendance is entirely reasonable? Legally, however, the issue is more nuanced. When the works council (OR) refuses to consent to a proposed decision, the court must assess whether the employer’s interests outweigh those of the works council. And it is precisely this aspect of the ruling that raises questions. Just how convincing is the balancing of interests carried out by the subdistrict court?
This article is an adapted version of a (Dutch) LinkedIn post by LinkedIn bericht van Jan-Pieter Vos.
Many reactions to the Booking.com ruling have been along the lines of: “Surely it is perfectly reasonable for an employer to require employees to be in the office two days a week?”
I certainly agree with that sentiment, but from a legal perspective, that is not the end of the matter.
To obtain substitute consent from the court, the employer must demonstrate that its arguments carry greater weight than the works council’s reasons for withholding consent. If the competing interests carry equal weight, consent can only be granted if compelling business-organisational, economic or social reasons require the decision to be taken.
Furthermore, the court’s ruling must demonstrate that the works council’s arguments have genuinely been taken into account in the balancing exercise. It must be clear not only that Booking.com’s arguments are considered more reasonable, but, more importantly, why.
When I read the ruling, what stands out to me is that the subdistrict court primarily concludes that Booking.com has a “more reasonable” interest.
Yet the works council’s arguments do not strike me as unreasonable in themselves. According to the ruling, these include the following:
Why Booking.com’s interests should outweigh these concerns is, in my view, insufficiently explained.
The ruling itself remains largely framed in general terms. The judge describes the idea that physical presence contributes to collaboration and trust as “perhaps not a firm scientific conclusion, but a widely shared assumption” (paragraph 17).
The observation that employees are “certainly not being asked too much” (paragraph 18) is ultimately more of an opinion than an actual weighing of competing interests.
These assumptions are set against concrete data presented by the works council. How the court weighs one against the other remains unclear to me.
Instead, the conclusion that Booking.com’s interests carry greater weight appears to rest primarily on the fact that the subdistrict court simply considers this to be the case.
That feels somewhat unsatisfactory.
Given the considerable attention this case has attracted, I had hoped for a more thorough explanation on this particular point.
And yes, I understand that such an assessment is difficult. However, judging from the proceedings, both parties appear to have presented sufficient arguments on the matter. The judge could certainly have made a more substantial attempt to address them.
As much as I personally sympathise with Booking.com’s position, I question whether this ruling is genuinely as helpful to legal practice as some commentators have suggested.
I am curious to see whether an appeal will be lodged and, if so, how the Court of Appeal will balance the competing interests.
Do you have questions about the works council’s right of consent or the legal aspects of working from home and mandatory office attendance? Please feel free to contact Jan-Pieter Vos.
