One chamber of Dutch Parliament approves law on remote working

The Netherlands Parliament has approved a law to grant people the right to work remotely if they can.

woman working from home at night

 

One part of the Netherlands government has passed a law granting a right to request whether to work from home or in the office.

The proposal, which is similar to the longstanding British right to request flexible working, still needs to be approved by the Dutch senate before its final adoption as law, but it recognises that hybrid and remote working can be beneficial. It states: “The cabinet calls on employers to make agreements with employees to permanently encourage hybrid working.”

The law would apply to employees at companies with at least 10 employees who have been employed there for at least six months. They have to submit a request to work from home in writing and no later than two months before the desired commencement date. The request must state the desired start date and desired workplace. Employers have to respond no later than a month before the commencement date. If not, the employee can start working from home in the way stated in their request.

An employer can only refuse a request (which they must do in writing) with good reason, for example, because it is not safe or the place where the employee wants to work is not suitable. because the request causes problems with the employer’s work schedule; or because the work cannot be done elsewhere.

If the employer refuses a request, employees must wait a year before they can make a new request.

Employment experts say the legislation could encourage adoption in other European Union countries.

Spain has already introduced a law in September 2020 offering protections for those who work remotely if they want to and requires remote working arrangements to be formalised through written agreements. In November 2021,  Portugal also introduced protections for remote workers, including making it illegal for employers to contact employees outside of their contracted working hours. It is said to be considering more legislation in this area.

Meanwhile, Germany is understood to be working on policies that could legally increase flexibility for staff and France is also said to be looking at protections in this area.

In the UK the right to request flexible working has been subject to criticism because it allows employers several broad-based reasons to reject a flexible working request. There is also no legal right of appeal.

There has been a lot of pressure on the Government to make flexible working a legal right by default ie putting the onus is on the employer to show that flexible working is not possible. A consultation was held on flexible working late last year, which included making the right to request flexible working from day one in a new job [currently you have to be in your job for at least six months before you can request flexible working]. The results of this were due to be part of the Employment Bill which was expected to form part of the Queen’s Speech earlier this year. However, the Bill was shelved.

Forstater ruling

Meanwhile, in other legal news, a UK employment tribunal has ruled that a woman who said people cannot change their biological sex was discriminated against by her employers. Researcher Maya Forstater did not have her contract at  the Center for Global Development think tank renewed after posting a series of tweets about gender and sex. They included: “I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’” and “radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept and will undermine women’s rights and protection for vulnerable women and girls”. Forstater believes ‘sex’ is not the same thing as ‘gender identity’.

In 2019, a tribunal judge decided such views were not “worthy of respect in a democratic society”. However, in a 2021 appeal, another judge ruled “gender-critical” views were protected under the UK’s Equality Act 2010, saying that in order for the belief not to meet the 5th strand, it had to be “the gravest form of hate speech, was inciting violence, or was as antithetical to Convention principles as Nazism or totalitarianism”.

The judge ordered a fresh tribunal and this ruled yesterday that the decision not to offer Ms Forstater an employment contract nor renew her unpaid visiting fellowship role in March 2019 was direct discrimination related to her “gender-critical” beliefs.

Kate Palmer, HR Advice and Consultancy Director at Pensinsula, says: “In reality, this latest development isn’t the main headline of this case – it’s the previous EAT decision on whether her belief was protected that is the biggest takeaway from the case so far.

“Where an employee is found to hold a protected philosophical belief and is subjected to a detriment as a result (in this case, her contract was not renewed), it is likely that claims for discrimination will succeed.

“Employers must keep in mind that, even where they do not agree with an employee’s opinions or viewpoints, it’s possible that they will still be a protected characteristic. Employers may only have flexibility to act against an employee for their belief if the belief seeks to destroy the rights of others. As confirmed by the tribunal system, a belief is still worthy of protection even where it may cause offence or upset to others.”

She added: “Businesses are encouraged to have diverse workforces, made up of people from different backgrounds with differing opinions and beliefs. A robust diversity and inclusion policy, supported by training sessions and initiatives, can allow employees to collaborate and share ideas amicably.

“However, employers should be clear that no employee should be subject to any form of bullying, discrimination, or harassment due to any protected characteristic they hold.”



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