Flexible working now arranged?

By Mr. Tjeerd Hoekstra, CMS Derks Star Busmann You probably know them, those pictures that do particularly well in management training. A happy employee sits with his trouser legs and shirt sleeves rolled up in an easy chair on the beach, with a laptop on his lap and with his bare feet in the surf. This image aims to illustrate flexible working. The Flexible Working Act (Wfw) comes into force on 1 January 2016. The idea behind the Wfw is that flexible working leads to a better balance between work and private life, so that employees experience less stress, can take on care responsibilities and labor participation is stimulated. I don't know if this is true. However, for many employers it is not sufficiently clear to what extent an employee's appeal for flexible working should be honored. In short, the Wfw regulates three subjects (for employers with more than ten employees), namely the adjustment of working hours, the adjustment of working hours and the adjustment of the location where work is performed. These last two topics have been introduced with the Wfw since January 1, 2016. Does this mean that an employee can request to work flexibly without hindrance and without clauses? And should the employer – reluctantly – agree to this? No, this is not the case. The employer is not at the mercy of the employee's whims and there are opportunities to take directive action. The Wfw imposes an obligation to consult in all cases. When an employee requests an adjustment to working hours, the employer's compelling business interests play a central role. This concerns economic, technical or operational interests that would be seriously harmed if a request were honored. Under the Working Hours Adjustment Act – which has been replaced by the Wfw – an important business interest of the employer in a request to adjust the working hours was not quickly accepted. It is expected that this will remain the case, but if the employer can demonstrate that he cannot fill the available working hours, safety is compromised or technical scheduling problems arise, there is indeed a valid argument for requesting an adjustment. of working hours. The same assessment framework applies to a request to adjust working hours. In addition, a request for adjustment of working hours must fall within the established daily or weekly windows. For example, an employee with a job that is performed between 9 a.m. and 5 a.m. cannot request to work at night. This means that the employee's options are already limited within the employer's business framework and the employee does not have 'carte blanche'. It is especially true here that a request may not be honored from a scheduling technical point of view. For both an adjustment of working hours and an adjustment of working hours, the employer may be required to ensure that the organization is able to adapt accordingly. An employer should not adopt a rigid or uncooperative attitude. If it concerns a request to change the location where work is carried out, the employer has complete freedom to decide on that request. The Wfw does not impose any grounds for rejection on the employer. The employer will have to discuss with the employee why he rejects the request, to provide insight into the weighing of interests and to create understanding for the final decision. The Wfw therefore does not contain an absolute right of the employee to work depending on location. This is a good thing, because there are plenty of functions whose correct performance is tied to a specific place, for example a general function of receptionist to the position of a specialized laboratory employee. Please note that if you, as an employer, allow the employee to work at another location, you will have to ensure that the alternative workplace is safe and meets the standards of the working conditions law. When an employee requests flexible working, keep a close eye on the procedural requirements that apply. The employer is obliged to enter into consultation and to act within the periods specified in the Wfw. If you as an employer do nothing, the Wfw assumes that the employer has given permission to the employee's request for flexible working. Even if the employer could not refuse permission under the Wfw, consultation with the employee remains effective in providing clarity about the (mutual) interests. The options for an employee to request a change in working hours, working hours and the location where work is performed are enshrined in the law under the Wfw. However, these options are limited by preconditions. The image of an employee with a laptop on his lap and bare feet in the surf therefore remains reserved for regular management training under the Wfw.