Working from Home Day is Term of Employment

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Sub-district Court Amsterdam, 1 June 2017,, ECLI:RBAMS:2017:3766


Even though the Sub-district Court considered the agreement that an employee could work from home for one day per week to be a term of employment, under the circumstances of the case, the employee should reasonably be expected to temporarily work at the company on that particular day.

Since 2010, an editor had been working at a publisher for a salary of over € 4,200 gross per month. From 1 July 2010, the editor had been working from home on Fridays. After good performance appraisals until and including 2014, the employer started being critical of the editor's working attitude. In particular, he was blamed for lack of commitment and flexibility. After two performance interviews, an improvement programme is started in November 2015, in which the employee is asked to work at the company on Fridays. The employee agrees to this. In July 2016, it is discussed with the employee that the improvement programme has shown sufficient improvement and that it is positively concluded. The employee suggests that he will start working from home on Fridays again. Although the employer does not agree, the employee refuses to give up his working from home day. As of September 9, 2016, he stops working at the company on Fridays. As a compromise, the company suggests that the employee will work from home one Friday per month until the end of the year, and that, if he performs well, he will be allowed to work from home every Friday again in 2017. Despite a counter-proposal from the employee to work from home one Friday every two weeks, the parties don’t arrive at an agreement. When, subsequently, the employee continues to work from home one Friday every two weeks, the employer stops paying the wage for the Fridays when the employee has not worked at the company. This results in proceedings at the Sub-district Court.

First of all, the Sub-district Court states that, although the working-from-home agreement is not included in the written employment contract between the parties, it has become a term of employment on the basis of accepted practice since 2010. The Sub-district Court then judges whether the employer was entitled to unilaterally amend this agreement. Since there is no written amendment clause to the employment contract, the Sub-district Court decides on this question on the basis of case law of the Supreme Court which is based on commitment to good employment practices. The Sub-district Court believes that the criticism of the employee's performance was sufficiently reason for a proposal to amend the employment contract. The Sub-district Court further considers that the change of the employment contract was not really significant since the employee did not live far away from the company and since the change would only last until the end of the year. Therefore, the employee would be required to accept the proposal. Thus, the employee's claim for a court-ruling that the employer was not authorized to unilaterally change the employment contract is rejected. However, the employee's wage claim is granted because the employer has insufficiently contested that the employee actually did his job on the days when he was not at the company.


The question of whether, and if so, when a particular action has become a term of employment as the result of a habit so that an employee may require further compliance, in practice often emerges. Usually, decisions judges make on this question are not or hardly substantiated. This case is no exception. The question should be why an employee should be confident that the employer will continue a certain practice from the past in the future. This confidence should actually be based on something more than the mere fact that a past practice has always been accepted. Anyway, if employers want to prevent that such a particular action will create obligations for the future, they are advised to make an explicit reservation in this respect.

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