Working from home has become inseparable from working life since the coronavirus pandemic. Many employees want to (continue to) work from home, while employers would prefer to see their staff in the office more often. But who actually decides that? Can an employer require someone to show up at the office, or can an employee demand to work from home? In this article the employment law attorneys at Arslan Advocaten explain what the right to give instructions entails and how the law deals with working from home.
What is the employer’s right to give instructions?
The right to give instructions is laid down in Article 7:660 of the Dutch Civil Code. It states that the employee is obliged to comply with the reasonable instructions of the employer concerning the performance of work. This means that the employer may determine where, when and how the work is carried out — as long as that remains within reasonable limits.
An example: an employer can stipulate that employees must be present at the office for meetings or collaboration, but cannot arbitrarily demand that someone works their entire workweek physically at the office if that is unnecessary or conflicts with previously made 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) does give employees the option to make a request to adjust the place of work to do so, for example to work (partly) from home. The employer may reject such a request, but must do so carefully and with reasons.
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 take that request seriously and respond in writing within a reasonable period (usually one month).
- The employer may refuse the request, for example because collaboration at the office is essential or because certain resources are lacking at home.
If an employer refuses without good reason, that may be contrary to good employment practice under Article 7:611 of the Dutch Civil Code.
Can an employer require employees to come to the office?
Yes, in principle. The right to give instructions gives the employer the authority to determine where the work is performed. But this right also has limits. The employer must take into account the employee’s personal circumstances, such as caregiving duties or medical limitations. This falls under the principle of reasonableness and fairness.
In the event of a dispute, a judge will always balance the interests: how heavily does the employer’s interest in presence at the office weigh against the employee’s interest in working from home?
Example from case law
In a judgment by the Gelderland District Court (2022), it was determined that an employee who refused to return to the office during the COVID period, still had to appear. The judge found that the company’s interest in in-person collaboration outweighed the employee’s personal interest.
Conversely, an employer who consistently refuses to allow working from home may be acting in breach of good employer practices — especially if working from home benefits the employee’s productivity or health.
Working from home and working conditions
Even when working from home, the employer remains responsible for a safe and healthy work environment. According to the Working Conditions Act the employer must ensure an ergonomic workstation, clear working hours, and protection against overwork. This means an employer cannot simply say, “Just do your work from home” without offering support or equipment.
In practice, this is arranged through a work-from-home agreement or additional policy that sets out agreements regarding the workplace, working hours, and reimbursement of costs.
Work-from-home allowance and costs
Many employees are entitled to a work-from-home allowance for the additional expenses they incur, such as electricity, water, or coffee. Since 2022, the employer may give a tax-free allowance of €2.35 per work-from-home day (amount
