Working from home has become a permanent fixture in working life since the coronavirus pandemic. Many employees want to continue working from home, while employers prefer their staff in the office more often. But who actually decides? Can an employer require someone to come to the office, or can an employee demand to work from home? In this article, the employment law specialists at Arslan Advocaten explain what the right to instruct entails and how the law deals with working from home.
What Is the Employer's Right to Instruct?
The right to instruct is laid down in Article 7:660 of the Dutch Civil Code. It states that the employee is obliged to comply with the employer's reasonable instructions regarding the performance of work. This means the employer may determine where, when, and how the work is performed — as long as this remains within reasonable limits.
For example, an employer can require employees to be present at the office for meetings or collaboration, but cannot arbitrarily demand that someone works their entire week at the office if that is unnecessary or conflicts with existing agreements.
Can an Employee Demand to Work from Home?
Employees in the Netherlands do not yet have an absolute right to work from home. The Flexible Working Act (Wfw) gives employees the option to submit a request to change their place of work. The employer may reject such a request but must do so carefully and with proper justification.
The Rules in Practice
- Employees who have been employed for more than 26 weeks may submit a request to work from home.
- The employer must seriously consider the request and respond in writing within a reasonable period (usually one month).
- The employer may reject the request but must explain the business reasons for the refusal.
- If the employer fails to respond in time, the employee's request is automatically granted.
What Are the Limits of the Right to Instruct?
The employer's right to instruct is not unlimited. Instructions must be:
- Reasonable: they must serve a legitimate business purpose;
- Proportional: they must not go further than necessary;
- Non-discriminatory: they must not disproportionately disadvantage certain employees.
If an employer issues unreasonable instructions, the employee may challenge this.
Working from Home Agreements in the Employment Contract
If working from home has been explicitly agreed upon in the employment contract or has become an established practice, the employer cannot simply revoke this right. The employer must consult with the employee and reach a reasonable arrangement.
How Can Arslan Advocaten Help?
At Arslan Advocaten, we advise both employers and employees on issues related to working from home and the right to instruct. Whether you are an employee whose request has been denied or an employer seeking to implement a clear policy, our employment lawyers can help. Contact us for expert legal advice.