Adjustment of working hours

Year of publication

2010


Edition number

187


Reference

Court of Appeals The Hague, 5 October 2010, www.rechtspraak.nl, ljn: BN9903


Decision

At a dental practice, four dentists, two dental hygienists, three dentist’s assistants, seven prevention assistants, one receptionist and a quality control assistant, who also has receptionist duties, are employed. The dentists and the various assistants all have their own specialism, mutually enhancing one another, and, according to a strict schedule, patients are being treated on four chairs (six surgeries) simultaneously. The goal is an optimum complement.

The receptionist works an average of 23.5 hours a week, on Mondays, Tuesdays and Fridays, and in winter starts work at 7.30 AM and in summer on Tuesdays and Fridays at 7 AM. The receptionist has three children, aged almost 5, almost 3, and one years old. The oldest child goes to elementary school and to out-of-school child care, that opens at 7 AM. The youngest child goes to a day care center, that opens at 7.30 AM. The middle child has a congenital defect, for which it has to have medicine early in the morning.

The receptionist has requested to work less hours. She wants to start work later, at 8 AM or 8.30 AM. The dental practice agrees to her working less, but not to the adjustment of her starting times. In interlocutory proceedings, the receptionist claims the option to start work at 8.30 AM or earlier if she is capable of that. The subdistrict court grants the claim to the extent that the dental practice, pending the results of proceedings on the merits of the case, should allow the receptionist to start work at 8.15 AM or earlier if possible. This arrangement has been in effect since January 2010.

However, the employer appeals to the Court of Appeals. This Court states, initially, that the employer, pursuant to the Working Hours Adjustment Act, should spread the working hours according to the employee’s wishes, unless the employer has such an interest that the employee’s wishes have to yield to that, in all reasonableness and fairness. The Court of Appeals also points out that, pursuant to the Working Hours Act, when establishing the work schedule, the employer should take into account, if this can be demanded from him in all reasonableness, the employee’s personal circumstances in her private life, including the care duties for children.

The Court of Appeals finds that the interest of the dental practice in having the reception desk manned from the moment that the practice opens, as well as the interest of the employee to care for her children and take them to the out-of-school child care and the day care center, are both evident.

However, the dental practice failed to convince the Court of Appeals that it is impossible to find a solution for manning the reception desk for the relatively short period in the mornings. After all, this also happens on days that the receptionist is not working. The Court of Appeals fails to see that patient care, service or turnover are damaged by this. The receptionist has started work at 8.15 AM since January 2010, and the dental practice did not state that this led to insurmountable problems.

However, the Court of Appeals also states not to be convinced that the receptionist could not find another solution. It is unclear, for example, why her spouse could not contribute to the care and transport of the children. On Fridays, the children are not in out-of-school child care and the day-care center, but go to the employee’s mother, and the Court of Appeals fails to see why the employee could not start work earlier on that day. According to the Court of Appeals, the employee also has to contribute to solving the problem.

In balancing the interests of both parties, the Court of Appeals finds that the employee should be able to start at 8 AM on Mondays and Tuesdays, because she demanded in the preliminary summons, the right to start at 8 / 8.30 AM. Therefore, in the opinion of the Court of Appeals, a starting time of 8 AM is possible. According to the Court of Appeals, the employee should find another solution for the Fridays, and the employee has to start at the agreed time on that day. For a final solution to the problem, the Court of Appeals advises the parties to consult and if necessary engage a mediator.


Comments

The legal scope that the Court of Appeals mentions in its ruling, means that the employer cannot simply evade the employee’s private interests. Balancing the interests of both parties, as is done by the Court of Appeals, means that the employer actually has to take those private interests into account.



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