Consent of works council required for changes in hybrid work policy

In a recent judgment of the Amsterdam District Court (ECLI:NL:RBAMS:2025:3782), the issue arose whether a change in a hybrid working arrangement requires the works council’s consent. The case concerned a computer and electronics business that, during the COVID-19 period, had decided to close its office entirely and require all employees to work fully from home. The full remote work policy was subsequently phased out, first to one day at the office and then to two days at the office. When management announced on 4 April 2022 that staff would be required to attend the office three days per week, the works council took the position that this decision was subject to its right of consent under Article 27 of the Dutch Works Councils Act (WOR). However, the works council did not grant consent for the proposed change, after which the employer applied to the subdistrict court, requesting a determination that consent was not required, or alternatively, that substitute approval be granted.

The Case at Hand

The central issue was whether setting a maximum number of remote working days in a hybrid work policy falls within the scope of the works council’s right of consent under Article 27 of the Dutch Works Councils Act (WOR). The employer argued that this was not the case, or at least that there were compelling reasons to bypass the works council. The works council maintained its position, invoking the impact on working conditions, work-life balance, and the established practice of recent years.

Court’s Considerations

The subdistrict court sided with the works council. According to the court, restricting remote work directly affects working conditions, as it has implications for commuting time, workplace, health, and the balance between work and private life. As such, Article 27 WOR applied, and the works council’s consent was required. In its assessment, the court took as its starting point the then-existing practice of two office days per week. Returning to “more office” constituted a change of policy.

The employer fell short in its request for substitute approval: reliance on the head office’s general policy and general studies on productivity was deemed insufficient. Ultimately, the court held that the employer’s very general and limited substantiation was not more reasonable than the works council’s position. The refusal of consent by the works council was therefore not unreasonable, and substitute approval was denied. The request for substitute approval on the grounds of compelling business-organisational, economic, or social reasons was also rejected. The employer’s assertion that it was obliged to follow head office policy and therefore had a compelling interest was considered inadequate by the court.

Key Takeaway for Employers

This judgment serves as a clear warning for employers. Remote and hybrid work policies are considered by the subdistrict court to fall within the scope of the works council’s right of consent. Employers wishing to amend such policies must not only follow the proper procedure but also substantiate their case thoroughly. General references to head office policy or academic literature will not suffice. Only with local evidence, a clear definition of the problem, and proportionate measures will a change stand a reasonable chance of success. This requires preparation and careful record-keeping.