Flexible working is a sought-after employment benefit. Indeed, many employees would like to work from home or have flexible working hours. With this flexibility, they can better combine work and private life. But what does the law say about this?
The Flexible Working Act (Wfw) gives employees the right to work flexibly. They can apply to the employer to adjust their working hours, working hours, or place of work. What are your rights and obligations as an employer?
The Flexible Working Act (Wfw) applies to ten or more employees. Should you have fewer than ten employees, the section on the ‘small employer’ later in this blog is more applicable to you.
The conditions that the employee must have to work flexibly (with ten or more employees within the company):
- The employee has been employed for at least half a year (26 weeks) on the desired effective date of the change.
- Employee shall send a written request at least two months before that effective date.
- Employees may resubmit such a request at most once a year after a previous request has been granted or rejected. If there are unforeseen circumstances, this period may be shorter.
The request must at least include the desired effective date of the change. In addition (depending on the type of request), it should consist of the following information:
- The desired extent of the adjustment of working hours per week, or, if working hours have been agreed over another period, over that period
- The desired spread of working hours over the week, or otherwise agreed period
- If applicable, the desired workplace.
Always take into account any binding collective agreement. These may include agreements on the right to work more, working hours, or adjusting the workplace.
These agreements take precedence over the Wfw. You can also make agreements on these topics with the works council or employee representation as an employer.
- You should consult with the employee about his request.
- You justify in writing any rejection or deviation from the employee’s wishes.
- You will let the employee know the decision in writing one month before the desired effective date of the change.
Respond to the employee’s request on time. If you don’t, the employee may adjust the working hours, working time, or place of work, even if you disagree with their request!
In which cases you may reject the employee’s request depends on the type of request:
Working hours and working time
Refusal of the request is possible in the case of working hours and working time only if it conflicts with important business or service interests. Here you can think of the following problems:
- for business operations in reallocating vacant hours
- in terms of security
- of a scheduling nature
- of a financial or organizational nature
- due to the non-availability of sufficient work
- because the established headroom or staff budget is insufficient for that purpose
You set the distribution of working hours according to the employee’s wishes. You may deviate from this if their wish is not reasonable. You must balance the employee’s interest against yours as an employer.
Refusing the request is easier when it comes to the workplace. You do not have to invoke compelling business and service interests.
As an employer, you do have an obligation to take your employee’s request seriously and thoroughly investigate whether you can agree to it. If this is not possible, you, as an employer, must account for this in writing.
It is also essential to know that adjustment of employee hours may result in different wage tax rates and national insurance contributions, employee insurance contributions, and pension contributions.
Small employer (with fewer than ten employees)
Are you an employer with fewer than ten employees? If so, you must make arrangements with your staff about adjusting working hours. As a small employer, this gives you more leeway to mutually agree with your employee. Consider whether there is a binding collective agreement; in that case, the rules of the collective agreement take precedence and are imperative for you.
Having more freedom of action as a small employer does not mean that you do not have to consider the Flexible Working Act. As with the larger employers to whom this law applies, you must consider the employee’s interests. This is mainly done by looking at section 7:648 of the Civil Code and the Distinction in Working Hours Act (WOA). This states that an employer may not discriminate between employees based on a difference in working hours (full-time or part-time) in the conditions under which an employment contract is entered into, continued, or terminated, unless such a distinction is objectively justified. This is the case when employees are disadvantaged based on a difference in working hours compared to others within the same employer performing similar work.
A modern employer recognizes the need for his staff to arrange their working lives flexibly to achieve a good work-life balance. The legislator is also aware of this growing need and, with the Flexible Working Act, wanted to give employers and employees a tool to arrange working hours, working time, and working place by mutual agreement. The law usually gives enough options to refuse a request if it cannot be realized in practice. However, this must be well substantiated. Case law, for instance, shows that more and more judges are taking a very critical look at the content of employers’ arguments. Therefore, an employer must carefully list the arguments beforehand and not assume too quickly that the judge will follow the arguments blindly. It is essential to take an employee’s request seriously and check whether there are possibilities within the organization to meet his wishes. If a request has to be rejected, clearly communicate the reasons why. This is not only required by law but also because an employee is more likely to accept the decision.
Do you have any questions regarding the above blog? Then get in touch with us! Our employment lawyers will be happy to help you!