Not Entitled to Work from Home after Corona Virus Lockdown

Year of publication

2020


Year of publication

386


Reference

Sub-district Court of Nijmegen, June 16, 2020, ECLI:NL:RBGEL:2020:2954


Decision

An employee, whom the employer had called to start working at the company again, after she had worked from home during the lockdown period, could not refuse to comply with the request because the employer had taken appropriate safety measures to protect the employee against corona virus contamination.

A company supplying kitchen equipment to the catering industry employed an employee in the position of an office-based sales assistant. At the beginning of the lockdown, on March 15, 2020, the employer had sent an email to employees stating that, until further notice, they should work from home. There were a few exceptions that, however, did not apply to the employee in question.
On April 11, 2020, the employer asked the employees to resume working from the company again as of Tuesday, April 14, 2020. The employee complied with the request, but immediately asked for permission to return to work from home again, because, as she said, already four people had immediately visited her office. The employer agreed to the request, under the condition that she would still work at the company if necessary.
On 6 May 2020, the employer announced that a number of measures were taken to enhance the safety at work and, therefore, that all employees were expected to work at the company again as of the next week. One day later, the employee sent an e-mail asking what compelling business interests would impede the government's advice to work from home. The employer believed, however, that the employee should simply comply to reasonable orders, such as come to work.

Since they failed to overcome their difference of opinion, the employee summoned the employer in summary proceedings, claiming to work from home, based on the Dutch Flexible Work Act. Just in case this claim would be rejected, she also asked to be allowed to work from home until 1 September 2020 (being the date until which, for the time being, government measures aimed at controlling the corona virus apply), whereby she invoked the requirements of being a good employer and the employer's duty of care for a safe working environment.
The Sub-district Court immediately rejected the claim that was based on the Flexible Work Act, because this law did not apply to the employer, who had fewer than ten employees.
The second claim was rejected as well.
The Sub-district Court held the opinion that this claim entailed that the legal situation between the parties would be definitively established, even if it would only be until 1 September 2020, which is not possible in summary proceedings. But the Sub-district Court indicated that he would also have rejected the claim on substantive grounds since, in the Sub-district Court’s opinion, the employer had taken appropriate safety measures.
The Sub-district Court also considered it plausible that the employer wanted the employee in the workplace. To this end, the employer had pointed out that it was an economically exciting period for her and that the activities had started to recover because the catering industry would be operational again on 1 June 2020. The presence of the employee was considered necessary given the unpredictable activities and the activities that cannot be postponed, such as taking over packages and processing and shipping orders. The employee was also responsible for the supervision of a colleague.
According to the Sub-district Court, the government's advice to work from home as much as possible did not give the employee the entitlement to work from home. Therefore, the employee's claims were rejected.


Comments

In this case, the Flexible Work Act did not apply, but if ten employers or more had been working for the employer, it would have made a difference. In that case, the employer could only have rejected a timely submitted request for workplace adaptation if a compelling business interest had impeded compliance with the request. The question is whether the reasons put forward by the employer would have been sufficient to reject the request.
Considering the fact, however, that the employee’s job consisted of activities that can only be carried out at the company and that these activities could not be planned and could not be postponed it seems plausible that the employer would have had sufficiently important business interests to reject the request.
On the other hand, it is conceivable that employees who acquired a taste for working from home during the lockdown may successfully appeal to the Flexible Working Act after this lockdown to enforce an entitlement to work from home.
In any event, the Sub-district Court judgment makes it clear that an employer who takes appropriate measures to ensure the safety of the employee may require the employee to come to work. Under certain circumstances, however, an exception is conceivable for employees who, due to illness, have an increased risk of contamination or for whom contamination due to illness would come with an increased risk of serious health problems.



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