Remote working has taken off in recent years, partly in response to the Covid pandemic and changes in work culture. This new way of working offers several advantages, both for employers and employees. However, the rise of flexible working also raises new questions and challenges for employers. For example, consider the situation where employees want to work wholly or partly from another country. In what cases can an employee claim this as a right? Which national law then applies to the employment contract? Which national court rules on labour disputes? And what about social security and taxes? In this blog series, we address these issues. In this first part, we discuss the Work Where You Want Act and some migration concerns.
Flexible Working Act
The much-discussed bill ‘Work Where You Want Act’ was rejected by the Senate on 26 September 2023. The intention of this proposal was that employees could submit a request to structurally work from home or at a (different) work location of the employer, even if it was in another EU country. Such a request should not simply be rejected. Now that this bill has been rejected, the Flexible Working Act remains in force. Under this act, an employee can request to work from a place other than the office. An employer must consider such a request, but may reject it – with reasons and in writing.
If an employee expresses a desire to work remotely from abroad, the employer should consider several aspects. In terms of migration, for example, consideration will need to be given to:
- Whether a residence and/or work permit is required in the working country. This is particularly relevant in the situation where an employee wants to work from a non-EU country and/or has a different nationality than the country from which he will work. It should be checked whether the country of employment allows the employee in question to come to work.
- Permits issued in the Netherlands for foreign workers. If employees stay abroad for a longer period of time, Dutch permits – think also of the highly skilled migrant scheme – may expire. This means that the employee will be unable to return to the Netherlands to live and/or work after the stay abroad. Employers can check this with the IND for each individual case.
- Abroad, both employers and employees may be subject to registration, enrolment and/or notification obligations. In any case, an obligation arises from EU regulations – the Posted Workers in the European Union (Working Conditions) Act – for employers to make a notification if they hire employees in another EU member state.
All in all, despite the rejection of the Work Where You Want Act, remote working from abroad is gaining traction. Under the Flexible Working Act, employees can request a change of work location. An employer must consider such a request, but may reject it, with reasons and in writing. Want to know more about working from abroad or have questions with regards to the above? Then please feel free to contact Caroline Mehlem, lawyer Employment Law, Employee Participation and Pension.