On 5 July 2022, the legislative proposal for the Work Where You Want Act was adopted by the House of Representatives. The proposal was subjected to a great deal of criticism, which meant that it was highly doubtful whether it would make it through. And now, the green light has been given after all. If this proposal also makes it through the Senate, it will mean an amendment to the current Flexible Work Act. The name of the proposal suggests that an employee can decide where he wants to work; any location seems possible. But is this really the case? In this article, we will address the most important aspects of the legislative proposal.
Flexible Work Act vs. Work Where You Want Act
Currently, the Flexible Work Act states that an employee may request an employer to adjust the place of work. The employer must consider the employee’s request and consult with the employee if it rejects the request. There is no substantive requirement of ”compelling business or service interests” for rejection, as in the case of a request for adjustment of working hours. The employer therefore has a great deal of freedom when considering such a request and can, in principle, reject the request on any grounds. The legislative proposal changes this.
The first version of the proposal stipulated that the employer had to grant the request for adjustment of the working place, if the intended working place was the home address of the employee or another work location of the employer, both located within the territory of the EU. According to the first version, this request could only be refused if serious business or service interests would oppose it. The desired place of work should therefore be within the territory of the EU and it should concern the home address of the employee or a work location of the employer.
In the case of a request to change the work location to another location, for example a second home outside the European Union, the employer does not in principle have to grant the request. The old (current) regime continues to apply and the employer must only ‘consider’ the request and consult with the employee in the event of rejection. Work where you want is therefore not really work where you want.
The question remains: how does the latest version of the proposal deal with the ‘substantial business or service interests’?
Memorandum of amendment
This ground for refusal was strongly criticized by, among others, the Social and Economic Council (SER), because the wording only takes into account the important interests of the employer, and does not weigh up the interests of the employer against those of the employee. According to the SER, a balance of interests would be a better test for a good balance between the employee’s control over hybrid work and customisation on the part of the employer. In response to this criticism, a bill of amendment has been submitted to change the test.
This means that an employer must grant a request for adjustment of the workplace if, in view of the circumstances of the case, the employer feels that their interests must give way to the request in accordance with the criteria of reasonableness and fairness. According to the SER, weighing interests by means of the criterion of ‘reasonableness and fairness’ would give the employee more say in the balance between working at a company location and working outside the company location, and would leave room for the employer to make arrangements that are appropriate to the organisation.
The memorandum to the bill of amendment explains that the balancing of interests is primarily carried out by the employer. The employer must assess whether its interests in all reasonableness and fairness outweigh the interests of the employee. The employer must consider all the circumstances of the case and must therefore be well aware of the concrete interests of the employee in an adjustment of the workplace. Elements that may be taken into consideration are social cohesion, cooperation within teams and heavy administrative or financial burdens for the employer.
The legislative proposal for the Work Where You Want Act stipulates that the employer must weigh up the interests involved in a request to change the workplace to the employee’s home address or to a work location of the employer within the EU. How this balancing of interests works out will depend on all the circumstances of the case. In the case of a request to change the place of work to a location outside the EU, the old regime will continue to apply.
We believe that the earlier test was far-reaching, but that this amended test still raises many questions. We await the response of the Senate.
If you have any questions about the legislative proposal, we are happy to help.