Clear agreements about working from home

In the Netherlands, working from home is often part of the employment conditions package. The employer may still refuse a request to work from home, if the parties have discussed this with each other. The Social and Economic Council (SER) recently issued an opinion, advising that the employer's refusal be assessed against the standards of reasonableness and fairness and that the Flexible Working Act be amended in accordance with the opinion. This means that in the event of a conflict about a request to work from home, the judge will further define the assessment criterion. In Curaçao, we do not have a flexible working law and requests for which there is no legal basis are often already filled in on the basis of reasonableness and fairness. In this blog, we will discuss frequently occurring points of discussion about the home working agreement.

A home working agreement is an agreement between the employer and the employee in which the conditions for working from home are included. These agreements often form an addition to the agreements already made. The existing employment contract does not need to be changed, but can be supplemented with agreements about working from home.

Working from home as a condition of employment

Working from home is not enforceable in the Netherlands or Curacao. The employer may still refuse a request to work from home. This may be different if the employer has offered working from home as a condition of employment. In that case, the employee has a stronger right to invoke working from home.

Employer liability

Violation of the employer's statutory duty of care for good and safe working conditions also extends to the home workplace. The Amsterdam Court of Appeal already ruled in 2006 that the employer was liable for RSI complaints, because the employee did not have an ergonomically responsible home workplace.

The duty of care includes that the employer must inform the employee about overload and a responsible workplace. In this context, the employer is wise to draw up regulations that the employee must adhere to when regularly working from home. These regulations can also be evaluated regularly, for example during the annual performance review. It is also good to make agreements about the provision of furniture and any necessary adjustments to the home, as well as options for the employer to be able to monitor the home workplace. The employee does not have to grant the employer access to the home, but agreements could be made about video calling, for example, to be able to check whether the home workplace meets the necessary care regulations.

Employee control and privacy

Monitoring the employee has two aspects that affect the privacy of the employee. The substantive work monitoring and the monitoring with regard to the safety and health regulations.

In the case of working from home, there is no physical control of the employee's productivity and employability. The employer will therefore have to assess this on the basis of the results to be delivered or he can use a personnel monitoring system for internet and e-mail activities under strict conditions. The employer must also inform the employee that these activities can be monitored. The monitoring must also serve a legitimate purpose, such as preventing the disclosure of company-sensitive information.

Reversing working from home

Given the limited experience employers have with it, working from home is often still seen as an experiment to see what the advantages and disadvantages of working from home are. This also often differs per company and per function. It is then good to also include agreements in the home working agreement in which cases working from home can be reversed and therefore no irrevocable right arises. If the parties do not do this, the successful reversal of it - which often happens at the initiative of the employer - depends on passing a triple reasonableness test that has been developed in case law. For example, a proposal to reverse working from home must be reasonable and the reason for making the proposal to change must also be reasonable. What is reasonable often offers a lot of room for discussion.

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