Loyens & Loeff | A right for employees to be inaccessible in The Netherlands

Recently, the bill “Right to Inaccessibility Act” (Wet op het recht op onbereikbaarheid) has been submitted to the House of Representatives. Employees are given the right to “be unavailable to perform work outside working hours”. What exactly does this right mean?

Right to Inaccessibility Act

Recently, the bill “Right to Inaccessibility Act” (Wet op het recht op onbereikbaarheid) has been submitted to the House of Representatives. The bill will provide for an amendment in the Working Conditions Act whereby, according to the initiator (Mr. Van Dijk, member of the House of Representatives) – “the right of the employee to be unavailable to perform work outside working hours is given substance”. What exactly does this right to inaccessibility mean?

Purpose of the bill

In the past few years, the use of mobile devices has increased enormously. As a result, the number of work-related messages outside working hours has also risen significantly. Now that employees also have access to their email and (work) phone outside the office, it is possible to determine when and where they can work most effectively. However, this also leads to a shift in the boundaries between work and private life, especially now that employees are working from home in large numbers due to the coronavirus. Research by the University of Amsterdam shows that by the fading of the distinction between work and private life, employees experience more ‘workplace telepressure’; the pressure that is felt to react immediately when a message comes in. The bill aims to regulate that employers will take measures against the risks of the adverse consequences, such as stress and burn-out complaints, through the feeling of being (or should be) continuously available.

Current regulations

“Everyone must be certain of undisturbed spare time”, according to Van Dijk in the first sentence of the Explanatory Memorandum to the bill. In the Netherlands we already have laws and regulations that need to ensure that employees must be able to carry out their work safely and healthy and be able to rest. Employers are obliged under the Working Conditions Act to investigate whether the work can cause danger or damage to employees’ health. In addition, the Working Hours Act regulates maximum working hours and minimum rest periods. However, figures from Statistics Netherlands show that the number of people dropping out due to stress or burn-out has increased by 5% since 2007. Van Dijk states that due to the rise of all mobile devices, the current regulations are no longer up to date and need to be adjusted.

The bill

Dutch law provides for a prescribed minimum rest period, however, there is not yet an explicit right to inaccessibility. By means of this bill, the employer will, in short, be required, in its policy aimed at preventing psychosocial workload (stress factors in the work situation), to give substance to the employee’s right to be unavailable outside working hours and to lay down in the hazard identification and risk assessment how the prescribed rest period will be guaranteed.

Prohibition of emailing outside working hours?

Will employers be prohibited from sending any emails outside working hours? It is probably not going to be that strict. Employers and employees, as part of the working conditions policy, will be required to enter into a conversation about being (un)available outside working hours, in order to take measures to combat the pressure experienced by employees by the feeling of being (or should be) continuously available. Employers must be able to demonstrate that this conversation has actually taken place. The Inspectorate SZW will only enforce this by checking whether the conversation has taken place. If this is not the case, the Inspectorate SZW can issue a warning. If this is not complied with either, the Inspectorate SZW can impose a ‘requirement for compliance’ and, in the ultimate case, an administrative fine. As a diligent employer, however, the employer must comply with the agreements made.

(Un)accessibility arrangements in collective bargaining agreements

In several collective bargaining agreements in the Netherlands, arrangements have already been made about (in)accessibility outside working hours. Last year, in the collective bargaining agreement for Care of the Disabled 2019-2021 (cao-gehandicaptenzorg), it was included for the first time that employees have the right to be unavailable for work on a day off. The collective bargaining agreement for Child Care Services (cao-kinderopvang) has a similar provision, but it has been additionally included that the employer may call the employee in case of a calamity. The employee does not have to respond in such a case. Finally, an explicit right to inaccessibility on days off has also been laid down in the collective bargaining agreement for nursing, care homes, home care and youth health care (cao-VVT) that has been declared generally binding. However, it has been stipulated that the provisions on standby, on-call, presence and sleep services continue to apply.

The right to (un)accessibility in other countries

It should be noted that the Netherlands is not the first country where accessibility agreements for employees are made. Several large companies in countries such as Belgium, Luxembourg and Germany have known this for quite some time. For example, BMW and Daimler in Germany have included in their company regulations that employees do not have to answer work-related e-mails after working hours. For the time being, France is the only European country where ‘le droit à la déconnexion’ is regulated by law. French companies with more than fifty employees are obliged to inform employees at what times they do not have to be available. If an employer does not comply with the right of inaccessibility, employees can challenge this in court. However, employees must prove that they experience psychological or physical complaints because the employer expects them to be available in the evening hours.

Conclusion

The bill is still pending in the House of Representatives and will enter into force no earlier than 2021. It remains to be seen how the bill will work out in practice. This will probably differ per sector and per function. In addition, employees (partly due to the corona crisis) will probably (have to) work from home for a longer period of time, with many employees making use of the option to arrange their own working hours. This makes it more difficult for employers to give content to this bill. For example, the measure ‘do not send e-mails outside working hours’ will be of little use when employees of a company are working at different times. Nevertheless, the proposed regulation at least provides a tool for employees and employee representatives (such as trade unions and works council) to discuss it, and employers are likely to become more aware of the issues surrounding this topic.

Author:

• Maureen te Poel, Counsel, LOYENS & LOEFF

Compliments of Loyens & Loeff – a member of the EACCNY.