The Work Where You Want Act was passed by the Second Chamber of Parliament on 5 July 2022 and is currently before the First Chamber of Parliament for consideration. The chances of this act becoming a reality are high. Reason enough to write a blog about the ins and outs of this new act and whether the Work Where You Want Act really means work where you want.
The debate surrounding what is sometimes called the right to work from home became more relevant than ever during the corona crisis. The initiators of the Work Where You Want Act believe that after the corona crisis, there was a greater need among employees to work from home, or at least an alternating rhythm between working at home and in the office (hybrid working). The Work Where You Want Act is an amended version of the Flexible Working Act (Wfw), with the biggest change being that an employee's request to adjust their workplace can only be refused on grounds of reasonableness and fairness, with the employer having to weigh up interests. However, further conditions apply to the employee.
Two main conditions are that the employee making the request must be employed by the employer for at least 26 weeks and that the request must have been made at least two months before the date the employee wants to work from home. Furthermore, the locations where the employee can work are limited. Two locations can be distinguished:
The employee's place of residence within the EU;
Another suitable workplace from which work is already commonly performed for the employer at that time (e.g. another establishment).
This means that the name "work where you want" is a tad misleading. For example, the employee is not allowed to work somewhere on a terrace or in a cafe.
Then there is the question of how the aforementioned balancing of interests should be done. The employee should invoke interests that prevail over those of the employer. But what is considered a compelling interest? In any case, the legislative history shows that limiting a lot of travel time, the employee's mental health or his increasing productivity can be a weighty interest for the employee to work from home. On the other hand, the employer's interests may include social cohesion within the company, cooperation between departments or administrative/financial burdens.
The balancing of interests
After the employee makes a request to work from home, the employer will have to sit down with the employee and discuss the circumstances. Each request must therefore be assessed separately because the circumstances differ for each employee. After this, the employer must assess whether its interests should give way to the employee's interests according to standards of reasonableness and fairness. He must be able to motivate this decision.
No later than one month before the intended start date of working from home, the employer must have made a decision on the request. If he does not decide (or decides too late), the request is automatically granted. The decision must be notified to the employee in writing. If the request is rejected, the request to work from home may be made again a year later.
Thus, the Work Where You Want Act does not literally imply that an employee may work where he wants. There are also conditions attached to the request to work from home which mean that in far from all cases such a request will be granted.
Want to know more?
Do you have questions about the Work Where You Want Act or about employment law in general? Feel free to contact one of our lawyers.