working from home (WFH) policy and the OR: obligations and compensation

Working from home is here to stay, even after Covid-19. But what are the rights and obligations of employers and employees in terms of compensation and working conditions? And how can the Works Council influence this?

– klik hier voor de Nederlandse versie van deze tekst –Understandably, we get many questions about working from home (WFH). That is why we have written this article about the costs of working from home and whether employers are required to reimburse these costs. Working conditions are also important for working from home. Based on many forms of regulation and legislation, employers can be expected to contribute.

We want to clarify all this in this article. It is also essential to know what this means for your organisation’s WFH policy, and what the Works Council’s role can (or perhaps should) be.

reimbursement for working from home (WFH): what is allowed or required?

WFH allowance and the Nibud

The Netherlands Institute for Budget Education (Nibud) concludes that working from home costs an average of € 2 extra per day per person (Dutch). This is based on the additional costs of electricity, water, gas, coffee/tea, toilet paper, and office furniture depreciation.

WFH allowance and the government

The Dutch government has decided to establish a compensation policy for working from home. Almost all government employees receive a fee of € 363 net per half-year, which is laid down in several collective agreements.

WFH allowance and the current legislation

This scheme applies to government personnel, but there is (as of yet) no general law for all employees in the Netherlands. Under Dutch law, an employer is not required to compensate the extra costs of working from home.

government appeal to employers and trade unions

The government calls on employers and trade unions to make further agreements about a more generous WFH allowance. For example, the Dutch House of Representatives is in talks with trade unions and the AWVN (the largest employers association in the Netherlands) to arrange WFH compensation payments. The AWVN believes that financial compensation reduces absenteeism.

WFH allowance and good employership

There are no legal obligations for employers to compensate for working from home. Article 7:611 (Dutch) of the Dutch Civil Code states that employers must demonstrate ‘good employership’. This obligation to be a good employer is quite extensive and can be invoked by employees in many situations.

But what is good employership? Does it include any compensation for additional WFH costs? There is, as yet, no case law for this. However, there are situations where you could say that it is good employership if the employer reimburses working from home. For example, in the following situations:

• when an employee needs to work from home but cannot afford the extra costs of working from home
• when the employer saves money on travel expenses, rental of office space, heating, lighting and coffee due to the large number of employees working from home
• when offering no compensation results in employees quitting their job because other employers do offer such compensation

There are, therefore (increasingly more) good reasons to reimburse the additional costs of working from home, even if it is not required by law. These compensations are not only in the interest of employees but also in the interest of the organisation. Even if it’s just because it makes employees happy to work for that organisation.

WFH compensation and customary law (acquired rights)

Some employers consider the continued payment of a travel allowance as compensation for the extra costs of working from home: employees still receive a fixed travel allowance while they no longer travel to the office (something that the Dutch tax service is condoning temporarily (Dutch). That is why many employers argue that an additional WFH allowance would not be necessary. Other employers want to cancel the travel expenses because it is no longer needed.

However, if an employee received certain allowances in the past, it may not be possible to cancel them ‘just like that’, because the allowances have become part of the wage. Receiving these allowances may have become ‘customary law’ (an acquired right), which means that the employee has accrued the right to those allowances because they have always received them and their salary cannot simply be cut back.

Customary law can lead to obligations for the employer (and employee) equal to what is described in the employment contract. In 2018, the Supreme Court ruled that customary law could lead to binding obligations for an employer towards their employees (ECLI:NL:HR:2018:976) (Dutch).

Travel expenses and other allowances are often a form of working conditions that, due to customary law, cannot be changed by the employer ‘just like that’. If employees in the past received reimbursement that replaced actual travel expenses for traveling to and from work (e.g., a public transport subscription that can also be used at weekends), this could be considered as a part of their wage. It needs to be paid or replaced by a payment/reimbursement in another way; in any case, the employee should not have their income reduced without any consultation.

These legal/judicial provisions and the case law (on these provisions) together determine that allowances other than wages should be considered wages and cannot be adjusted unilaterally by the employer.

working conditions for WFH

In addition to compensations for additional costs, working conditions are also an essential topic in an organisation’s WFH arrangements or WFH policies.

The Dutch Civil Code states that the employer is obliged to “establish and maintain spaces, premises, machinery and equipment in which or with which work is carried out under their responsibility, and to provide guidance and take the safety measures reasonably necessary to prevent the employee from suffering damage in the performance of their work.”

safe and healthy WFHplace

In other words, the employer must ensure a safe and healthy working environment. The employer must also inform and advise employees on that safe and healthy workplace. Employees also have the right to have the working conditions examined by the SZW Inspectorate (Dutch).

If the organisation fails to meet its obligations, the employer may be held liable for (injury) damage to employees, such as back problems or RSI symptoms. This also applies if you get a back pain when working from home because you are sitting on a kitchen chair.

These obligations for the organisation are (also) laid down in the Working Conditions Decree (Art. 1.47 Working Conditions Decree). TNO (as an independent research organisation) has created an infographic to explain what a safe and healthy (home) workplace should look like.

The employer must ensure that the employees’ home offices are equipped with an ergonomically sound desk, chair and computer screen, and good lighting. The employer should always pay the costs (if any) of this.

no distinction in working conditions

According to the Dutch Civil Code, an employer cannot make any distinction in applying working conditions based on sex, the number of working hours and type of employment contract (fixed or indefinite period). The ‘good employership’ mentioned above also requires employers not to distinguish between employees if there is no justified reason.

If an employer offers opportunities and facilities for working from home to some employees and not to others, this may violate the obligations of good employership. Inequality can also occur if not all employees receive the same information about the setup of a home office and compensations.

However, there may also be a good reason for the distinction. For example, if employees are working for the same organisation in different countries. In some cases, based on national regulations, an employee in one country will receive a WFH allowance, and an employee in another country will not.

WFH arrangements and the Works Council

According to Article 27 of the Works Council Act (WOR) (Dutch), the Work Council’s right to consent applies when arrangements for working conditions and terms of employment are introduced or modified. This includes the WFH policy or the WFH arrangement. It also applies if the organisation has to make policy adjustments because the government has taken special measures, such as the Covid measure to work from home as much as possible (Dutch).

If the employer does not want to introduce a WFH policy or a WFH arrangement, the Works Council can take the initiative with the right of initiative (WOR art. 23, paragraphs 2 and 3) (Dutch). An initiative proposal must be supported in writing by the Works Council and discussed at least once in a consultation meeting. The employer is not required to implement the Works Council’s initiative proposal but must provide clear and justified reasons why they do not accept the Works Council’s proposal in whole or in part.

Furthermore, Article 28 of the WOR (Dutch) states that the Works Council must do its utmost to ensure that the employer acts per the laws and regulations related to working conditions. If the employer does not comply with this, the Works Council can (officially) inform them of this by means of a letter or in the (minutes of the) consultation meeting.

conclusion: a WFH allowance is not compulsory, but a good workplace at home is required

Employers are not required to pay an allowance for working from home. However, the government, the AWVN (employers’ association), and the trade unions agree that the employer should bear the costs of working from home.

Employers have the legal obligation to ensure a safe and ergonomically sound home office. All employees should be given the same opportunities and facilities to work from home unless there is a legitimate reason to deviate from it.

Because working from home has become a structural and common solution, all organisations in the Netherlands must carefully consider a good and established WFH policy and WFH arrangements that are clear to everyone. The Works Council can play its part in this by using its right of consent and right of initiative.

 

Note: Please note that we are a Dutch organisation and that all our information is originally composed in Dutch. For the benefit of our English-speaking customers we have translated some of our online information. We are still in the process of translating even more of our information. It could therefore be that you will come across Dutch pages on CT2.nl. Please contact us if you would like more information.