Issues to consider when working remotely from abroad (part 1)

For example, consider the situation where employees want to work wholly or partly from another country. In what cases can an employee claim this as a right? Which national law then applies to the employment contract? Which national court rules on labour disputes? And what about social security and taxes? In this blog series, we address these issues. In this first part, we discuss the Work Where You Want Act and some migration concerns.

Soon, employers with at least ten employees – after the Senate has agreed to the bill – will have to deal with the Work Where You Want Act. This law amends the Flexible Working Act and creates an employee right to submit a request to structurally work at home or at an (alternative) work location of the employer, even if it is in another EU country. The employee may submit a request once a year and must include the desired start date and place of work. The employer must respond at least one month before the effective date. If he fails to do so, the request will take effect without further delay. The employer may only reject the request if the employer’s interest outweighs the employee’s interest in reasonableness and fairness. In making this assessment, the employer will have to consider all the circumstances of the case. Whether the employer has a compelling interest depends on the circumstances of the case. Factors that may play a role in this test:

• The importance of social cohesion.
• Limited opportunities for collaboration.
• An inappropriate or unsafe home/work situation.
• A heavy administrative or financial burden for the employer. This could include possible additional costs such as setting up a foreign payroll, using a foreign health and safety service or paying foreign tax contributions. The fact that working abroad involves additional costs is not in itself sufficient reason to reject the employee request. It weighs in, but is not in itself decisive. Only if the costs are disproportionately high can an employer refuse a request on this point.
• An employer does not have to agree to the request if the requested workplace is at a location outside the EU. In addition, an employer may refuse the request if the requested workplace is not at the employee’s home address or a work location of the employer. An employer is not obliged to accept requests for a place of work other than the office or home address. Such requests need only be considered by the employer.

If an employee expresses a desire to work remotely from abroad, the employer should consider several aspects. In terms of migration, for example, consideration will need to be given to:

• Whether a residence and/or work permit is required in the working country. This is particularly relevant in the situation where an employee wants to work from a non-EU country and/or has a different nationality than the country from which he will work. It should be checked whether the country of employment allows the employee in question to come to work.
• Permits issued in the Netherlands for foreign workers. If employees stay abroad for a longer period of time, Dutch permits – think also of the highly skilled migrant scheme – may expire. This means that the employee will be unable to return to the Netherlands to live and/or work after the stay abroad. Employers can check this with the IND for each individual case.
• Abroad, both employers and employees may be subject to registration, enrolment and/or notification obligations. In any case, an obligation arises from EU regulations – the Posted Workers in the European Union (Working Conditions) Act – for employers to make a notification if they hire employees in another EU member state.

All in all, the Work Where You Want Act is expected to make it easier for employees to work from another (EU) country in the future. In principle, the employer can reject a request only in case it has an interest in doing so that outweighs, in fairness and reasonableness, that of the employee. When assessing such a request, it is therefore important that employers complete a careful weighing of interests.  Want to know more about working from abroad or have questions with regards to the above? Then please feel free to contact Caroline Mehlem, lawyer Employment Law, Employee Participation and Pension.