More and more organisations are reviewing their remote working policies. While hybrid working has become the norm for many employees in recent years, some employers are now seeking to have employees return to the office more frequently. In some cases, this means requiring one additional office day per week; in others, a full return to office-based working. But can an employer simply make such a decision? And when must the Works Council be involved?
This issue was recently addressed in the Caterpillar case. De Clercq Advocaten Notariaat represented the Works Council in these proceedings. The subdistrict court ruled that the existing remote working policy could not be withdrawn without the Works Council's consent. This judgment follows the earlier Asus case, in which the court also held that changes to remote working policies may fall within the Works Council's right of consent.
The question of whether the Works Council has a right of consent when remote working policies are changed or abolished can arise in two ways.
The first route is Section 27(1)(d) of the Dutch Works Councils Act (Wet op de ondernemingsraden). Under this provision, the Works Council has a right of consent regarding intended decisions to establish, amend, or withdraw arrangements relating to working conditions. At first glance, a remote working policy appears to concern only the location where work is performed. However, that location also determines the circumstances under which employees carry out their work. Relevant factors include commuting time, workload, concentration, flexibility, and work-life balance.
In the Caterpillar case, the subdistrict court held that working conditions are materially different when employees are able to work from home one or more days per week compared with being required to work entirely from the office. A decision to abolish an existing remote working policy may therefore constitute a change to working conditions. The Asus case likewise demonstrates that changes to remote working policies may fall within the Works Council's right of consent.
This does not mean that every decision relating to remote working automatically requires consent. The content of the policy, the nature of the proposed change, and the consequences for employees remain decisive. However, these judgments show that remote working policies should not be too readily regarded as merely practical arrangements concerning office occupancy.
The second route concerns the history of the policy. Was the Works Council previously involved in introducing flexible working or remote working? Was consent requested at that time? Or was remote working included in an employee handbook, remote working policy, or individual remote working agreement? These factors may be relevant when determining the Works Council's role in a later amendment or withdrawal of the policy.
This also played a role in the Caterpillar case. The Works Council had previously been asked to provide consent for the introduction of flexible working, of which remote working was an important element. The subdistrict court therefore held that, even if no statutory right of consent existed, the Works Council at least had a contractual or enhanced right of consent based on Section 32 of the Dutch Works Councils Act.
International groups face additional considerations. A global return-to-office policy cannot simply be implemented in the Netherlands without involving the Dutch Works Council. In such cases, questions may arise as to whether the local Dutch employer is taking or merely implementing the decision, whether an international group decision can be attributed to the Dutch entity, or whether the foreign parent company should under certain circumstances be regarded as a co-entrepreneur. If a policy affects employees in the Netherlands, the role of the Dutch Works Council must be assessed.
1. Map the Existing Policy
First, determine exactly what arrangements are currently in place. Is there a remote working policy, employee handbook provision, hybrid working policy, or individual remote working agreement? And how is the policy applied in practice?
2. Check Whether the Works Council Was Previously Involved
Was the Works Council involved when flexible working or remote working was introduced? Was consent requested at that time? This may be relevant when determining whether the Works Council also has a right of consent regarding a later amendment or withdrawal.
3. Assess the Decision Against Section 27 of the Works Councils Act
Does the decision merely concern practical office occupancy, or does it also affect working conditions, working hours, privacy, employee assessments, or monitoring? Depending on the substance of the decision, one or more elements of Section 27 may apply.
4. Substantiate the Interests on Both Sides
Employers should clearly explain why a change is necessary. General references to collaboration, productivity, or social cohesion are often insufficient unless it is clear what problem is being addressed and why the proposed measure is necessary.
Works Councils should clearly identify the consequences for employees. Relevant factors may include workload, commuting time, concentration, and work-life balance.
5. Pay Attention to Deadlines
If an employer implements a decision requiring consent without obtaining the Works Council's approval, the Works Council may invoke the nullity of that decision. The Works Council must do so in writing within one month after the decision has been communicated to it or after it has otherwise become aware of the decision.
Timing is also important for employers. After the Works Council has decided on a request for consent, the employer must inform the Works Council in writing as soon as possible of the decision taken and the date on which it intends to implement that decision.
6. Document Agreements Clearly
If parties make agreements on hybrid working, evaluation moments, exceptions, or transitional arrangements, these should be properly documented. This helps prevent disputes at a later stage.
Tip: Put remote working policies and return-to-office plans on the consultation agenda in good time. The earlier employers and Works Councils engage in dialogue, the greater the likelihood of developing a careful and workable policy.
For many organisations, remote working is no longer a temporary measure introduced during the COVID-19 pandemic, but an integral part of how work is organised. A decision to restrict or abolish remote working may therefore go beyond a practical adjustment to office occupancy.
The judgments in the Asus and Caterpillar cases demonstrate that the Works Council's right of consent may be relevant in such decisions. This is particularly the case where a remote working policy affects working conditions or where the Works Council was previously involved in introducing flexible or remote working arrangements.
It is therefore important to assess the Works Council's role before making any changes. This helps prevent disputes arising only after a decision has already been announced or implemented regarding whether consent should have been requested.
Would you like to know more about the Works Council's right of consent in relation to remote working policies? Please contact Liban Hadi, lawyer specialising in Employment Law and Employee Participation, or Jan-Pieter Vos, lawyer specialising in Employment Law and Employee Participation.
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