Return to work policy in the Netherlands

The Amsterdam District Court has ruled that works councils have a prior consent right over remote work policies under Dutch employment law, rejecting an employer's attempt to unilaterally reduce remote working days from the current practice.

Impact

This ruling is particularly relevant for multinational companies with Dutch operations, as it demonstrates that local works council rights may take precedence over global headquarters policies when it comes to changing of hybrid work arrangements. This ruling, if upheld, could significantly shift the balance of power in Dutch employment relations, potentially making it much more difficult for employers to modify remote work arrangements even for legitimate business reasons.

Case Background

An international computer manufacturer sought to implement a hybrid work policy limiting employees to a maximum of two days working from home per week, requiring three days in the office. The company's works council refused to provide consent, leading to a legal dispute over the scope of the works council's consent rights.

Court's decision

The court ruled that the works council has a prior consent right under Article 27(1) of the Works councils act , because remote work policies constitute regulations concerning working conditions. The court emphasised that working conditions are fundamentally different when working from home versus in the office, affecting commute requirements, work flexibility, work environment customisation, and work-life balance. The works council even argued successfully that an employee survey showed that a majority of the staff preferred to keep the current arrangement.

OC comment

We are of the opinion that this as a concerning precedent that, if upheld, may undermine the intended balance between employee protection and business operational flexibility in Dutch co-determination law. The ruling is in our view not in compliance with the Supreme court precedent (Holland Casino case), which established that the purpose and intent of a regulation determines whether consent is required, not merely its effects on working conditions. The company's purpose was to improve productivity, creativity, social cohesion, loyalty and collegiality - not to regulate working conditions per se.