Working from home and remote working have become indispensable, especially since the coronavirus pandemic. But what happens if a customised agreement, which was initially temporary in nature, is continued for years? Can an employer still unilaterally change such an agreement? A ruling by the subdistrict court of Midden-Nederland on 28 November 2025 illustrates that such a customised agreement can result in an enforceable employment condition.

Facts/background of the dispute

In this case, an employee of a Dutch company had been working largely from Ecuador, where he lived with his family, since 2020, with the consent of his employer. This arrangement was initially intended to be temporary, but continued for years without objection. The employee performed well and the employer facilitated this way of working, even after the original agreements were interpreted more broadly in practice than the arrangement had been laid down on paper.

In 2023, the employer introduced a new policy for working from abroad. These so-called “workations”, whereby the principle is to work outside the Netherlands for a long period of time, were no longer considered desirable by the employer. The employer therefore wanted the employee to return to the Netherlands. The employee opposed this and argued that working from Ecuador had now become a condition of employment.

Judgment of the Subdistrict Court

The subdistrict court largely agreed with the employee. According to the subdistrict court, working from Ecuador had become a condition of employment due to the long-term and consistent factual course of events.

In assessing whether remote working from Ecuador had become a condition of employment, the subdistrict court explicitly referred to the criteria set out in the FNV/Pontmeyer judgment of the Supreme Court of 22 June 2018. It follows from that judgment that an employment condition does not have to be agreed upon exclusively when entering into the employment contract, but can also arise as a so-called acquired right through consistent conduct on the part of the employer.

Read the FNV/Pontmeyer judgment of the Supreme Court here..

The court assessed the meaning that the parties could reasonably attribute to each other's conduct. Among other things, the following were considered relevant: the content and duration of the agreement, the manner in which it had actually been implemented for years, the absence of explicit warnings or reservations on the part of the employer, the importance of the arrangement for the employee and the fact that the employer had actively facilitated the working method. The fact that the arrangement was initially labelled as temporary did not sufficiently detract from this, as this temporary nature was not maintained in practice. In view of these circumstances, the employee could reasonably rely on working from Ecuador having become part of his terms of employment.

After the subdistrict court had established that remote working from Ecuador had become a term of employment, the question arose as to whether the employer could unilaterally change this term of employment. The employer could not unilaterally change this term of employment by exercising its right to give instructions on the basis of Section 7:660 of the Dutch Civil Code. An appeal to the unilateral amendment clause in the employment contract with reference to Section 7:613 of the Dutch Civil Code was also unsuccessful, because the employer did not have sufficiently compelling interests to justify the amendment. The subdistrict court applied the standard from the Fair Play judgment of the Supreme Court of 29 November 2019. It follows from this judgment that a unilateral amendment clause can only be applied if the employer has such a compelling interest that the employee's interest must give way according to standards of reasonableness and fairness.

Read the full Fair Play ruling of the Supreme Court here..

In weighing up the interests, the subdistrict court judge attached great importance to the personal and specific interest of the employee in continuing the agreed working method. At the hearing, the employee had demonstrated, partly on the basis of documents submitted, that his life and that of his family had now been completely organised around their stay in Ecuador. He was the breadwinner, his family lived there permanently and was socially and culturally rooted there. A compulsory return to the Netherlands would have far-reaching consequences for family life, the health situation within the family and the existing social structure.

The subdistrict court considered it important that this interest was not new, but already existed at the time the original agreements were made and was known to the employer. It was precisely these circumstances that led to the decision to allow the employee to work from Ecuador at the time. This interest had not diminished or changed in the years since, while the employee had demonstrably continued to perform well and the employer had facilitated this working arrangement for years without objection.

In contrast to this compelling and concretely substantiated employee interest, the subdistrict court ruled that the interest put forward by the employer, namely pursuing a consistent policy and preventing precedents, did not carry sufficient weight in this specific case to justify a unilateral change to the terms of employment.

Read the full court ruling here..

Practical implications

This ruling clarifies that a working arrangement involving working from home or remote work may, if applied on a long-term and consistent basis, evolve into an employment condition that cannot be unilaterally altered without meeting strict requirements.

Whether such a working arrangement actually constitutes an employment condition is determined by its concrete implementation in practice. If an employer allows and facilitates such an arrangement for a longer period of time, without making clear reservations or actually enforcing the agreed temporary nature of the arrangement, the employee may have a legitimate expectation that this arrangement constitutes an employment condition. In that case, the employer cannot simply invoke its right to give instructions in order to unilaterally change the agreement. Even if such a clause is included in the employment contract, the employer will have to substantiate that there is a compelling interest that outweighs the interests of the employee. The employee's personal circumstances, such as family life, place of residence and social integration, may be decisive in this regard, especially if these circumstances were already known at the time the original work agreement was made.

Conclusion

Do you, as an employer or employee, have questions about working from abroad, working from home, (unilateral) changes to employment conditions, or adjusting policy and/or agreements made? Or do you have other employment law questions? The employment law team at SPEE advocaten & mediation is ready to advise and assist you.