The right to work from home comes closer with SER advice

Employees should have more say about the place where they work. Even before the Social and Economic Council (SER) full advisory report had on its website to this effect, there was already political support for it on Thursday.

D66 and GroenLinks will ‘process’ this advice in their private member’s bill on this subject, wrote Member of Parliament Steven van Weyenberg (D66) on Twitter.

In their own bill, workers had been given an even stricter right to work from home. But Van Weyenberg already calls the milder SER proposal “a big step forward”. And the advantage is: employers are also behind this. That helps in amassing a political majority.

Opinions of the SER, an important government adviser, are always written by representatives of employers, trade unions and expert ‘crown members’. Often after tough negotiations.

Regulation now too lean

What exactly would change if this proposal for working from home were adopted?

An employee may already request a change of work location: more often from home, for example. But the boss then only has to “consider” that request, according to the law.

The SER finds that too lean. Employers should grant such a request if it is “reasonable and fair”.

That may sound vague, but it does strengthen the position of employees, expects Ruben Houweling, professor of employment law at Erasmus University Rotterdam. “The starting point is then that the employer cooperates, or explains why it is not possible.”

This brings the right to work from home closer, albeit in a moderate form. Judges will ultimately have to fill in what exactly is ‘reasonable and fair’ for each situation. The SER does mention arguments that employers can use to refuse a request. For example, they should point out that presence in the office promotes cooperation and ‘social cohesion’.

“Judges are perfectly capable of assessing whether such arguments make sense,” says Houweling. An employer can also use ‘social cohesion’ as an excuse to refuse any form of working from home. “Then a judge will ask further questions: is it really necessary for cohesion that the employee is in the office for five days? Why is two days not enough?”

Employers may deviate from the new legal standard, advises the SER, if agreements are made about this with trade unions or the works council.

News hour canceled

The SER advice would actually appear a week and a half earlier. Chairman Mariëtte Hamer had to have a studio conversation in TV program news hour cancel, because the employers’ delegation wanted to expand the report – which already had almost a hundred pages – at the last minute. It had to be renegotiated.

Employers’ clubs such as VNO-NCW, MKB-Nederland and AWVN had heard concerned voices from their supporters. Entrepreneurs feared that employees would be given a kind of ‘right to work from home’ in this advice.

Also read this interview with Mariëtte Hamer: ‘The SER was a candy store, but a bit sleepy’

This is how the idea arose for the SER to write a complete explanatory statement to the law, which D66 and GroenLinks can adopt immediately. It was further made clear that this amendment does not ‘by definition create a right to hybrid works’.

It illustrates how sensitive the subject is for employers and trade unions.

Initially, the trade union movement had wanted to give employees an even stronger position. The boss should only refuse their request with “weighty” arguments. That was also the purport of the proposal of D66 and GroenLinks. But for employers, this went too far.

After a year of negotiations – including the week extension – they came to an agreement. There was a unanimous advice from the SER. Just in time: on her last day as chair, Mariëtte Hamer still joined Nieuwsuur.

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