Many companies let their employees work from home as much as possible in recent weeks in connection with the corona crisis. Employees are slowly returning to the office now that the virus seems to be under control. Companies will have to ensure that work in the office can be carried out in a safe manner and must therefore take measures to prevent the spread of the virus at work as much as possible. Suppose the employee does not like to return to the office. Can he or she refuse to go back to the office, given the applicability of Dutch employment law? In a case that was brought before the Gelderland District Court, the judge ruled on June 16, 2020 that this was not allowed.
In this court case the employer asked most employees at the outbreak of the corona crisis to work from home as much as possible. Everyone was expected to return to the office as of May 11, 2020. The employer had taken measures to allow employees to work safely. One employee did not (yet) want to work from the office and asked for compliance with an earlier commitment of 14 April 2020, in which the employer had granted the employee (who had also been previously called to work in the office) permission to continue working at home, on the condition that she should come to the office if necessary. The employee eventually involved her employer in summary proceedings and demanded that the employer would allow her to work from home.
The judge first established that the employee's appeal to a change of job under the Flexible Working Act did not apply because the employer's business was too small. This act does not apply if the employer has less than 10 employees. Pursuant to the Flexible Working Act, the employee can summarily request the employer to adjust the working hours, work place or working hours. Furthermore, in addition to the fact that a claim for a change of job cannot be granted in summary proceedings, the judge also considered that the claim was not admissable because the employer had not breached the obligations under good employment practice, its power to instruct and / or duty of care. According to the judge, the employer had taken appropriate corona measures. In addition, the employer had made it plausible that she needed the employees on the work floor. The judge also made it clear that the generally formulated government advice to work at home as much as possible does not intervene to the extent that the employee can derive a "right to work from home". According to the judge the position of the employee that this government advice limits the employer's powers of instruction and / or that it should be followed by a good employer on the grounds of reasonableness and fairness did not hold up.
This decision of the court makes it clear that the employee cannot simply refuse to resume work in the office. This is probably different if the employer has not taken or has not taken sufficient measures to prevent the spread of the coronavirus or if it concerns a vulnerable employee and another outbreak occurs.
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