Frits Hommersom met groene bril

No right to work from home because of coronacrisis

Although the government has formulated an advice in the context of the coronacrisis about working at home that comes down to doing that as much as possible until September, that does not mean that you as an employee can also derive a right from that, as the subdistrict court in Nijmegen ruled in summary proceedings.

On 15 March 2020, an employee who was employed by VoC Grootkeukens as an indoor sales representative and service coordinator received a company-wide email with the following content: “in order to minimize the possibility of infection with the corona virus, until further notice the people mentioned below will be excluded from work at home […]. The employee then receives a request via WhatsApp on 11 April to come back to the office.

The employee reported back to work on 14 April, but on the same day she requested permission by e-mail to still work at home. The employer grants permission, with the proviso that the employee must come to the office if necessary.

On 6 May all the employees receive a message: as of next Monday we will all be working at the office again. The e-mail also mentions all sorts of measures the employer has taken to safeguard the health/safety of the employees.

The employee is apparently not very confident and e-mails the next day that the advice of the government is really to work at home until September. She then asked for a motivation of what serious business interests the employer considered to require her to appear at work.

After several emails back and forth, the discussion hardened and the employer let it be known that the employee was expected to follow reasonable orders, such as showing up for work.

Claims of the employee in summary proceedings
Pursuant to the Flexible Work Act, the employee primarily claims compliance with the written promise of 14 April 2020 to the employee to be allowed to work from home. In the alternative, she claims modification of the work place in the sense that she is allowed to work from home until 1 September 2020. All this on penalty of forfeiture of a fine of €1,000, with a maximum of €25,000.

Before the Subdistrict Court, the employee argued that, due to the current Corona crisis and on the basis of the Flexible Working Act, she had requested and received permission from her employer to work at home. In the alternative, she believes that her employment should be changed, at least until September 1, 2020, to allow her to work from home. By not allowing her to work at home, the employer is acting in violation of good employment practice, its instructional authority and duty of care.

The employee puts forward a number of arguments and among them she states that on April 14 she had to experience at work that colleagues did not properly observe Social Distancing , where in private she observed it seriously. This made her feel unsafe. Also, during the two months she worked at home, she was able to perform her duties very efficiently. The employee points out the government advice to work at home, which in her view the employer wrongly does not adhere to.

The Assessment
The employee’s primary claim failed because the Flexible Work Act stipulates that it does not apply to employers with fewer than 10 employees, which was the case in this instance.

The Subdistrict Court then concluded that a change of job cannot be adjudicated in summary proceedings, since it concerns a drastic change in the employment relationship. Since in preliminary relief proceedings no judgments are pronounced that establish the legal position between the parties, the judge considers this in itself already a reason to reject the claim.

The Subdistrict Court furthermore concluded that the employee’s claim cannot be allowed on substantive grounds either, because it had not become plausible in the proceedings that the employer had violated the obligations arising from good employment practice, the authority to instruct and/or the duty of care.

The Subdistrict Court ruled that the employer has substantiated and substantiated that in connection with the corona crisis it had taken several measures to ensure a safe workplace. This is evident from the e-mail of 6 May 2020 in which instructions are described and workplaces are assigned to employees. At the hearing, the employer further explained that it also reduced the number of chairs in the cafeteria, that there are disinfectants in several places, and that an attempt was made to give each employee their own office space.

The employer explained that it is necessary, especially in this economically exciting time for her, for her employees to be present at the workplace. Packages need to be accepted and orders need to be processed and then shipped. In addition, the employee supervises a colleague. In view of the work pressure of the two immediate colleagues of the employee, these activities cannot be transferred to them alone.

The Subdistrict Court considered that the very generally formulated government advice about working from home as much as possible did not affect this specific legal relationship to such an extent that the employee could derive a right to work from home from it. Her position that this government advice restricts the employer’s authority to give instructions and/or must be followed by a good employer based on reasonableness and fairness does not stand up.

As a basis for her claim, the employee had also pointed to the existence of an agreement between her and her employer, from which, in her view, it should follow that she is allowed to work from home. She referred to the earlier e-mails, but the Subdistrict Court concluded that it could only be deduced from those e-mails that permission to work from home had been given for a limited period and on a clause-by-clause basis, and could not be regarded as an agreement that could serve as a basis for an unconditional change of position.

For the ruling: https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBGEL:2020:2954

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