ABN AMRO made headlines this week in the Financieele Dagblad. The bank wants employees to work from the office more frequently and is currently negotiating this with the trade unions. ABN AMRO is not alone in this – a broader trend is emerging across Dutch businesses. Since the COVID-19 pandemic, working from home has become the new normal. But the tide is turning. An increasing number of companies want employees to spend more time in the office again. Reasons cited include higher productivity, stronger connections with colleagues, greater creativity and a better work-life balance. This may sound logical. However, changing a work-from-home policy is more than simply a management decision.
A change to a work-from-home policy may qualify as a change to a policy concerning working conditions. If so, the works council has the right to give or withhold its consent under Article 27 of the Dutch Works Councils Act (WOR). This is also supported by case law.
For example, the Amsterdam District Court ruled in the case involving the works council and Asus that changing the number of days employees may work from home requires the works council’s consent. A work-from-home policy qualifies as a policy concerning working conditions. Last year, the ’s-Hertogenbosch District Court likewise ruled in the Caterpillar case that abolishing the work-from-home policy required the works council’s consent. In that case, the purpose of the change was to alter employees’ working conditions.
These judgments show that courts scrutinise decisions to roll back work-from-home policies closely. If an employer fails to obtain the works council’s consent when it is required, the work-from-home policy cannot be changed. In the Caterpillar case, the district court even prohibited the employer from implementing the decision until the works council had given its consent or the court had granted substitute authorisation.
As with ABN AMRO, arrangements concerning working from home are sometimes agreed at collective bargaining level. This does not automatically mean that the works council has no role to play. If the collective agreement leaves the employer discretion to determine the details of the work-from-home policy within the organisation, the works council may still have a right of consent in that respect. The collective agreement establishes the framework; the further implementation within that framework may require the works council’s consent.
This is an important consideration for both management and works council members. Even where trade unions are involved, employee representation at organisational level has a separate and independent role.
If an organisation wants to navigate this process properly, it should involve the works council at an early stage. Not only to avoid legal pitfalls, but also because early involvement contributes to better decision-making and broader support for the outcome. And when a work-from-home policy has such a direct impact on employees’ daily lives, that support is essential.
For works council members, the key is to ensure that they are involved in good time. This allows them to assess employees’ views and contribute to a carefully considered implementation. Where appropriate, they can also agree on transitional arrangements.
Is your organisation considering changing its work-from-home policy and do you want to ensure that the process is handled carefully? We would be happy to help.
If you have any questions, please contact Barbara van Dam, Legal Assistant specialising in Employment & Employee Representation, or Eline Snijders, Attorney specialising in Employment & Employee Representation.
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