New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Ireland

Ireland

  • at Littler

The General Scheme of the Right to Request Remote Working Bill 2022 (the “General Scheme”) was published in January 2022 (see here).  Once enacted, the legislation, will introduce a legal framework in Ireland for employees to request remote working arrangements.

The General Scheme provides an overview of what is likely to be contained in the Right to Request Remote Working Bill.  It is proposed that all workplaces will be required to have a remote working policy, specifying the manner in which remote working requests will be managed, the time frame in which a decision will be made and the specific terms which will apply to remote working arrangements.  Failure to do so may result in a fine of up to €2,500.  It is proposed that employers will be required to bring this policy to the attention of employees on commencement of employment and at least annually thereafter, or when amended.  

The General Scheme provides that employers will be permitted to decline a request for remote working were satisfied that, in its view, the request is not suitable on business grounds.  The General Scheme sets out a list of non-exhaustive business grounds.  It is proposed that employers will be required to respond to requests within 12 weeks.

In line with most Irish employment protections, it is anticipated that this right will be limited to employees only, and so will not extend to independent contractors or “gig” workers who are not employees.

The legislation is expected to be finalised and implemented later this year, with plans to develop a code of practice to provide employers with further guidance.  In the meantime, the government has introduced guidance for working remotely (see here) and a remote working checklist for employers (see here).

Last updated on 16/08/2022

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Since March 2020, the Dutch government has advised that employees should work (partly) from home, unless this is not possible. Currently, the advice is that employees can work up to a maximum of 50% of their working hours at the office. This concerns all “types of workers” (employees, independent contractors, etc.), but, because it concerns a governmental emergency measure, it does not provide employees with an explicit “right to work from home” or “right to work remotely”. On 23 November 2021, the government issued guidelines, which employers could use to accommodate employees (at least) temporarily working remotely. These guidelines (in Dutch) can be found here.

Although most employees have been working from home, or at least partly from home as of March 2020, Dutch legislation is brief on remote working and does not provide a right to remote working. The Flexible Work Act (Wfw), which applies to employers with more than 10 employees, has been in effect since 1 July 2016 and under this legislation, employees who have been employed for at least six months before the intended start date of the requested adjustment can request to adjust, inter alia, their place of work. Article 1(d) of the Wfw defines “place of work” as “any agreed place which is or is usually used by the employee in connection with the performance of work.” In principle, employers have to consider the request and – if the request is being rejected – to discuss it with the employee. In addition, once the request to adjust the place of work has been granted, the employer can withdraw the adjustment.

More recently, on 27 January 2021, the legislative proposal the “Work Where You Want Act” was submitted. This would provide employees with a right to homeworking and aims to provide employees with more freedom to divide their time between the workplace and working from home. It is expected that the legislative proposal will be discussed with the House of Representatives in February 2022.

Last updated on 08/03/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Ireland

Ireland

  • at Littler

The Data Protection Commissioner has issued guidance on the protection of personal data when working remotely (see here).

The key risks identified relate to protecting and preventing access to laptops, USBs, phones, tablets and other devices; emails; using unsecured networks to transmit data or to access company networks; and ensuring the security and confidentiality of hard-copy documents.

Employers should update data protection policies to take account of remote working and should also consider any data protection issues that may arise from an employee moving to work outside of Ireland.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Employees who process data at home could create a data leak if they lose the data or improperly dispose of it after it is no longer useful for the company or their work. It is also more difficult to protect digital data in a non-professional setting and a private network might be more vulnerable to breaches. If a data breach does occur, the employee should, in principle, report this to the Dutch Data Protection Authority within 72 hours.

Employers are advised to update data protection policies to take into account remote working, and should also consider any data protection issues that may arise from an employee moving to work outside of The Netherlands.

Last updated on 08/03/2022

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Ireland

Ireland

  • at Littler

Employers must have regard to an employee’s right to privacy and data protection rights. They must have a legal basis under GDPR for processing employee personal data in that manner and must also be able to demonstrate that the monitoring in question is a necessary and proportionate action to achieve a legitimate aim; and that there is no less intrusive alternative way of achieving that purpose.

Guidance from the Data Protection Commissioner has focused on employers being transparent regarding the measures they adopt, including the purpose of collecting any personal data; minimising the amount of data that is processed; and preserving the confidentiality of any such data.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

The use of equipment to monitor employees is subject to strict conditions under article 8 of the European Convention on Human Rights, the General Data Protection Regulation (GDPR) and Article 7:611 of the Dutch Civil Code (DCC).

In practice, we see several types of ICT software being used to remotely monitor employees’ activities on computers used by the employee at home (e.g., logging in- and out, the number of keystrokes, usage of e-mail and internet, screenshots or photos of the workplace at home can be taken via the webcam). These methods of monitoring are invasive to the privacy of employees and should be treated with much caution. It seems that these forms of monitoring cannot easily be considered necessary, since employees who work at the office are not being permanently supervised or monitored either.

Last updated on 08/03/2022

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Ireland

Ireland

  • at Littler

Unless provided for in an employment contract, there is no mandatory obligation on an employer to provide particular work equipment (save as part of its ongoing health and safety obligations), to pay a working-from-home allowance or to reimburse employees for costs associated with remote working.

The Irish tax authorities permit an employer to pay an allowance of up to €3.20 per working day tax-free to employees who are working from home to cover expenses such as heat, electricity and broadband. Any amount paid over and above this permitted limit of €3.20 is fully taxable as income. Here no allowance is paid, an employee may recover up to 30% of the cost of their broadband, heat and electricity costs directly from Revenue, the Irish taxation agency. However, only costs that are attributable to working days are recoverable.

Equipment that is provided by an employer to enable an employee to carry out his or her work (eg, laptop or monitor), and which is used by the employee primarily for work purposes, is not taxable as a benefit-in-kind. Vouched expenses that are incurred wholly and exclusively in the course of an employee’s duties are not generally subject to tax, but this exemption is applied on an extremely limited basis.

Last updated on 16/08/2022

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Employers are required to provide their employees with the relevant work equipment to perform their duties. This also concerns employees who work remotely. In addition, there is an obligation for employers to make sure employees can perform their duties in a safe and responsible way and employers will need to cover the costs associated therewith.

On 1 January 2022, the government introduced a tax-free home-working allowance of a maximum of 2 euro per (part of the) day of homeworking, to compensate the employee for costs associated with remote working (e.g., internet and electricity costs). However, this is not a mandatory allowance. Based on the Work-Related Expenses Scheme, there could be more tax-free reimbursements in place in regarding the costs associated with providing work equipment, but whether this is permitted should be checked on a case-by-case basis.

Last updated on 08/03/2022

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Ireland

Ireland

  • at Littler

Employees working remotely outside Ireland may create expensive tax liabilities for themselves and their employers. It’s important to be aware of these before any long-term decisions are made.

The foreign country in which the employee is working may seek to tax some or all of that employee’s income from the employment. This is based either on the fact that a substantial number of days have been worked in that other country or in some cases on the basis that the employee has become a tax resident there under local law. Further, social security liability may accrue (which is generally assessed separately from income tax).

The main concerns for employers will be whether there is an obligation to operate local payroll withholding and whether local social security rules add significantly to the wage bill. The rules vary widely between countries and, unfortunately, there is no “one size fits all” approach to managing this issue across multiple jurisdictions.

Employers will also need to consider two corporate tax risks. First, an employee working abroad may in some circumstances constitute a permanent establishment of the employer in that other country, exposing part of its profit to corporate taxes there. Second, if an Irish company has directors based abroad, there is a risk of the company also acquiring corporate residence in another country.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

There can be potential issues and risks concerning the taxation of salaries, social security coverage, the applicable labour law for employers in the context of cross-border remote-working agreements (e.g, article 8 Rome I Regulation) and issues related to the applicable court in case of litigation (e.g., EEX or Brussel I Regulation).

Last updated on 08/03/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Ireland

Ireland

  • at Littler

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee. However, such a reduction could be agreed upon between the parties as part of an agreement, for example, to permit the employee to work remotely permanently.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, this is not the case unless the individual employee provides his consent therewith. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (e.g, travel expenses) may no longer apply in individual cases.

Last updated on 08/03/2022

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Ireland

Ireland

  • at Littler

Realistically, no. There is no specific prohibition on employer-mandated vaccination in Ireland, but it will be difficult for employers to justify making vaccination mandatory under existing Irish employment law principles. Employers can, however, encourage employees to get the vaccine.

Employer-mandated vaccination presents several significant risks to employers: breaching the implied term of trust and confidence in employment contracts, giving rise to constructive dismissal claims; legal arguments that the requirement is an unconstitutional encroachment upon an employee’s private life; data protection issues; and discrimination risks.

Current government guidance, as set out in the Transitional Protocol is that the decision to get a vaccination is voluntary and that workers should therefore make their own decisions in this regard.

Last updated on 16/08/2022

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

An employer cannot require or mandate that their workers receive a covid-19 vaccination. Under Dutch law, as stated in the Dutch constitution, vaccination is voluntary (the sanctity of human life).

Employers may, however, encourage their employees to get vaccinated of their own free will, for example by promoting vaccination. Still, it is vital to exercise caution when promoting vaccination, as employees might easily feel that they are being “pressured” by their employer and are being limited in their decision whether or not to get vaccinated.

Furthermore, an employer can ask employees about their vaccination status, if the employer has a 'good reason' to do so. Such “good reason” entails that the question on the vaccination status is (i) proportionate, (ii) necessary to achieve a legitimate purpose and (iii) the purpose cannot be achieved by less dramatic measures. Possibilities seem limited. Employers must also take into account the GDPR, as they are not permitted to process data about the vaccination status of their employees.

More information can be found here

Last updated on 08/03/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Ireland

Ireland

  • at Littler

Where employers can objectively justify restricting access on that basis (e.g. to maintain a safe working environment), the risk of such a restriction being successfully challenged is limited. However, the processing of this data may be problematic from a data protection perspective.

In any event, it does not confer any particular advantage to adopt this approach given that the current official guidance is that employees continue to follow best practice guidance, such as, following the public health advice regarding self-isolation and staying away from the workplace when displaying any symptoms of Covid-19, irrespective of an employee’s vaccination status.

Last updated on 16/08/2022

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Under current law, employers may not make entry to the workplace conditional on employees having received a covid-19 vaccination. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his right to employment in court. In addition, refusing entry for unvaccinated employees could be considered as discrimination and a violation of privacy legislation.

More information can be found here

Last updated on 08/03/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Ireland

Ireland

  • at Littler

No.  However, guidance issued by the Data Protection Commissioner (see here) provides that vaccination may be considered a necessary safety measure in certain circumstances, including the provision of healthcare services.  The HSE (the largest employer of healthcare workers in Ireland) has been permitted to seek information about employee’s vaccination status to assess any potential risk to patients and other employees.

Last updated on 16/08/2022

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Netherlands

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  • at Rutgers & Posch

This is not the case, but this might change soon. There are several legislative proposals in this regard expected to be discussed by the House of Representatives or which are currently on-hold in the light of the current covid-19 situation.

Last updated on 08/03/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Ireland

Ireland

  • at Littler

Information about a person’s vaccination status is special category personal data for the purposes of the GDPR. It represents part of their personal health record and is afforded additional protections under data protection law.

The Data Protection Commissioner has issued guidance stating that the processing of information about an employee’s vaccination status is unlikely to be necessary or proportionate in most employment situations (see here), except potentially in industries which have a very obvious, urgent and direct safety need (such as the provision of frontline healthcare services) or the Irish government introduces new measures requiring employers to process this data.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Information about whether an employee has been vaccinated and other medical information is personal data concerning health within the meaning of GDPR. Employers are not permitted to process such personal data about their employees unless they can invoke a ground for an exception. At present, no such grounds exist. This means that the GDPR prevents employers from recording their employees’ vaccination status or otherwise processing any data associated with their status.

More information can be found here

Last updated on 08/03/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Ireland

Ireland

  • at Littler

Employers have an ongoing legal duty to maintain a safe working place and environment. Responsibility for health and safety at work rests with the employer, whether or not that work is being done at the worker’s home.

Employers need to consult with their employees to assure themselves:

  • that the employee is aware of any specific risks regarding working from home
  • that the work activity and the temporary workspace are suitable
  • that they provide suitable equipment to enable the work to be done
  • that there is a pre-arranged means of contact.

The Health and Safety Authority has produced helpful guidance and information on the health and safety issues relating to remote working, which is available here.

Last updated on 16/08/2022

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Netherlands

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  • at Rutgers & Posch

An employer has the statutory duty of care to provide employees with a safe and healthy working environment irrespective of whether work is performed from the office or “location-independent work”, based on the Dutch Working Conditions Act and article 7:658 DCC. Additional rules and obligations apply based on the Working Conditions Decree and the Working Conditions Regulations. The Netherlands Labour Authority (a governmental institution) enforces this legislation and if there is non-compliance, a penalty can ultimately be imposed. The Netherlands Labour Authority is also competent to inspect the workplace; even when employees are working remotely.

In short, the key health and safety obligations for “location-independent work” are that the workstation must meet the criteria for ergonomic working and computer screen equipment, unless this cannot reasonably be expected from the employer (Chapter 5 Working Conditions Regulations). Employers must ensure their workers have proper supplies, such as approved chairs and tables, good artificial lighting (unless the employee already has such facilities) and that employees with special needs are accommodated. The employer should bear or reimburse the costs incurred (article 44 Working Conditions Act). Employers should, furthermore, regularly and pro-actively inform employees of healthy working conditions and the furnishings for an ergonomic workspace. This is a continuous duty of care. Employers should also check whether the remote workspace complies with working conditions obligations, for example by having a picture or video taken of the workspace by the employee. Furthermore, based on Article 3 paragraph 2 of the Working Conditions Act, the employer is obligated to have a policy in place aimed at preventing and – if that is not possible – limiting the psychosocial workload (PSA).

For location-independent work, health and safety obligations are somewhat alleviated compared to working at the office. The most important exception is that chapter 3 of the Working Conditions Decree concerning the arrangement of the workplace is not applicable, meaning that regulations relating to escape routes, emergency exits, firefighting, preventing the risk of falling, etc, do not apply to location-independent work.

Last updated on 08/03/2022

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Ireland

Ireland

  • at Littler

The pandemic has not directly impacted employers’ obligations beyond the physical workplace from a health and safety perspective, as the legal duties and responsibilities that apply to employers predate the pandemic. The difference is that these issues have assumed a higher level of attention due to the wholesale adoption of remote working as a result of the pandemic.

Last updated on 21/09/2021

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Netherlands

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  • at Rutgers & Posch

The covid-19 pandemic has had a great impact on employers' health and safety obligations towards their employees, especially concerning mental health challenges due to the change in working conditions during the pandemic. This includes the lack of social contact with colleagues and private and work lives intertwining.

Last updated on 08/03/2022

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Ireland

Ireland

  • at Littler

No, except for particular categories of mobile workers (for example long-distance drivers) who have the benefit of specific protections when it comes to working hours and rest breaks.

Last updated on 21/09/2021

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Netherlands

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  • at Rutgers & Posch

In principle, the relevant health and safety obligations apply to “location-independent work”, which includes both mobile working and working from home. However, there are some exceptions made in terms of mobile workers. For example, artificial lighting requirements and requirements on supplying approved chairs and tables do not apply, as an employer is not responsible for furnishing such a workplace. There are ongoing discussions between legal experts on whether more distinction should be made between working from home and other forms of remote working in terms of the working conditions and what should be expected from employers (and employees).

Last updated on 08/03/2022

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Ireland

Ireland

  • at Littler

When it comes to protecting the mental health and wellbeing of workers, employers owe the same duties to employees who are working remotely as those who are not.  Employers have a duty to maintain a safe working environment, both in the workplace and when working remotely. 

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Since the pandemic, the mental health of employees, who have been mostly working remotely for two years, appears to be under more pressure compared to pre-pandemic times. Burnouts are looming because employees who work remotely are more likely to be constantly on-call and to work overtime.

Based on article 3 paragraph 2 of the Working Conditions Act, employers have an obligation to have a policy in place aimed at preventing and – if that is not possible – limiting the PSA. This also concerns workers who are working remotely.

Employers must take the relevant measures in this regard based on the risk inventory and evaluation (RI&E) performed and must establish and implement a plan of action to prevent or limit the PSA of its employees. Employers are also obliged to provide information and instructions to employees who are working remotely on the risks of PSA and the measures taken to prevent and reduce such risks. It is also recommended that employers should regularly monitor the functioning of the remote worker and his or her “well-being”.

If an employer does not comply with the aforementioned duty of care, this could eventually lead to The Netherlands Labour Authority imposing administrative fines. In addition, the employer could – in certain circumstances – be held liable for any health (including mental health) damages suffered by employees pursuant to article 7:658 paragraph 1 DCC.

Furthermore, insufficient care for the PSA can create obstacles to granti a request to dismiss an employee based on underperformance (article 7:669 paragraph 3(d) DCC), as this would require that the inadequate performance may not be the result of insufficient care on the part of the employer for the working conditions or training of the employee. In addition, a higher fair compensation (billijke vergoeding) could be granted by a court in case the insufficient care for the PSA of the employee is deemed a seriously culpable act of the employer.

Last updated on 08/03/2022

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Ireland

Ireland

  • at Littler

There has been no change to underlying employment legislation or rights, save for the suspension of the right of an employee who has been temporarily laid off for more than four weeks to claim an entitlement to a redundancy payment. This suspension, introduced as part of a suite of emergency measures at the outset of the pandemic, has now come to an end.

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee.

Last updated on 18/11/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, regular rules on redundancy due to business or economic reasons remain applicable during the pandemic. However, if an employer has been applying for one or more of the different tranches of the Temporary Emergency Bridging Measure to Preserve Employment (the NOW scheme), which provide a payroll subsidy in a given period and is based on the employer’s (expected) loss of revenue, making redundancies could have consequences for the total amount of subsidies received. For each tranche of the NOW-scheme, different rules apply. Under the most recent NOW 6.0, which could be applied for until 13 April 2022, employers can reduce their loan costs (e.g., by reducing a maximum of 15% of its payroll) without affecting the subsidy received. However, this cost-saving method must be determined in consultation with employees or the works council or staff representation.

Employers can, in principle, only reduce employees’ wages and benefits with the consent of the employee, as this would concern a unilateral amendment of their employment conditions. Employers, furthermore, cannot unilaterally force employees to take unpaid leave or vacation days.

More information on NOW 6.0 can be found here

Last updated on 08/03/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Ireland

Ireland

  • at Littler

No specific, coordinated actions have been taken other than normal day-to-day activities. The government’s Transitional Protocol which deals with the steps that employers must take to facilitate the reopening of workplaces, provides for the appointment of a Lead Worker Representative, whose role is to work together with their employer to assist in the implementation of and monitor adherence to public health measures to prevent the spread of covid-19 in their workplace. The Lead Worker Representative does not need to be a member of a trade union or any other worker association to carry out the role.

Last updated on 16/08/2022

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

During the covid-19 pandemic, several trade unions demanded that employees be granted the right to work from home. Furthermore, trade unions also advocated that employees working from home should receive an extra allowance for additional costs associated with remote working (e.g., internet and electricity costs). On 1 January 2022, the government has granted this request; it introduced a tax-free home-working allowance of a maximum of 2 euro per (part of the) day of homeworking. Please note, this is not a mandatory allowance.

Last updated on 08/03/2022

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Ireland

Ireland

  • at Littler

No, unless there is a collective bargaining agreement in place that imposes such a requirement. Ireland operates a voluntarist approach to trade union recognition, which means that there is no mandatory recognition of trade unions, and so they have limited (if any) influence in non-unionised workplaces.

Last updated on 21/09/2021

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

As long as there is no collective labour agreement in place, which gives rise to any relevant co-determination rights of trade unions on this matter, there is, in principle, no involvement of a trade union required when a remote-working arrangement is being introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at a collective bargaining level.

In case a works council has been installed (obligatory to install for companies with more than 50 employees), their involvement for the introduction of a regulation on remote working seems mandatory. The works council might have the following rights related to the intended remote-working policy.

  • The works council is entitled to receive all information reasonably necessary for the performance of its duties, also when an employer intends to introduce a remote-working arrangement. In principle, it is up to the works council to decide what information it reasonably needs. The company can impose on the works council a duty of confidentiality on all information provided.
     
  • Prior consent of the works council is necessary for the introduction (or modification or withdrawal) of a remote-working policy based on article 27 of the Dutch Works Council Act (WOR). The company must submit any intended decisions in this respect in writing to the works council, together with a summary of the reasons for the proposal and the anticipated consequences for employees. Before the works council makes its decision, at least one consultation meeting between the employer and the works council on the subject must take place. If the works council does not give its consent to the proposed decision, the company may request the Cantonal Court to approve the decision. The Cantonal Court may only grant approval if the works council’s refusal to grant approval is unreasonable, or if the company’s proposed decision is based on important business-organisational, business-economic or business-social reasons.

    If a remote-working arrangement is introduced without the consent of the works council or the Cantonal Court, it shall be rendered null and void. This is, however, only the case if the works council so advises the company in writing within one month after the company has notified the works council of the decision or, in the event no notification has been given, within one month after becoming aware that the decision is being implemented or applied by the company.
     
  • Furthermore, the implementation of a remote-working scheme may require consultation with the works council if it falls under the scope of article 25 WOR (eg, when major investments are to be made for the benefit of the company or if important technological facilities are to be introduced or modified). Before rendering its advice, the works council and the company will then need to deliberate on the matter at least once in a consultative meeting, which means that the company is obliged to join such a meeting and provide the works council with the requested information. The company has to give the works council a reasonable amount of time (in practice four to eight weeks, depending on the matter) to render its advice.

The works council can render positive advice, positive advice with some conditions that have to be taken into account in the company’s decision, or negative advice. If the advice of the works council has not or not in its entirety been followed (eg, if the works council rendered negative advice or positive advice with conditions that have not been taken into account by the company), the company must inform the works council of the reasons for not following the advice. This will cause a delay in the process as the employer must suspend implementation of the decision for one month after the date on which the works council was notified of the decision. During this month, the works council has the opportunity to appeal to the Court of Appeal. The only possible ground for appeal is that the company could not have reasonably reached its decision, having properly weighed up the interests involved.

If the decision conforms fully with the advice (or the works council rendered positive advice on the intended decision), the employer can directly implement the decision.

If staff representation is installed, which is mandatory for companies between 10 and 50 employees, co-determination rights could apply in terms of, inter alia, the introduction of a remote-working policy.

More information can also be found here

 

Last updated on 08/03/2022