13 Jul 2021 Working from home without permission
Immediate dismissal justified or not?
This week, we discuss a recent ruling by the subdistrict court in Rotterdam. The case concerns an employee who decided earlier this year to work at home because of the winter weather. Her employer did not approve and summarily dismissed her. Was the dismissal upheld by the Subdistrict Court?
The employee worked as a relationship manager for a company engaged in the manufacture and sale of hydraulic equipment. She had a fixed-term employment contract. In the weekend of 6 and 7 February, our country was plagued by heavy snowfall. On Sunday 7 February 2021 “code red” was applicable. On Monday 8 and Tuesday 9 February 2021, Public Works (Rijkswaterstaat) warned road users about dangerous driving conditions due to snow and ice.
As a result, the employee did not feel comfortable taking to the road on Monday 8 February. Hence, the day before, she send a message to a colleague that she would be working at home on Monday. A day later, on Tuesday 9 February, the employee reported this as well. However, the employee's manager did not agree to the employee working at home. On Tuesday, 9 February, at 8:15 a.m., he informed the employee that she had to come to the office.
The employee (60 years old) refused because she found the situation on the road too dangerous and insisted that she could work at home on her laptop. The parties subsequently had a conversation via Skype about this subject. The employee's persistence led to an instant dismissal, which was given by telephone on 9 February 2021 at around 14:00. The employee also received a written confirmation of the dismissal, which stated 'refusal to work' as the reason.
Since the employee disputed the existence of an urgent reason justifying immediate dismissal, she went to the Subdistrict Court. She also argued that the immediate dismissal had not been given without delay. The woman applied for fair compensation of €25,000, fixed damages of €2,500 gross plus holiday allowance and the transitional allowance.
Judgment of the Subdistrict Court
The Subdistrict Court ruled that the immediate dismissal had indeed been given without delay (and therefore in good time), even though the employee had already been working from home on Monday 8 February and had only been informed of her dismissal on Tuesday 9 February. The background: the employee's manager was travelling for business and it was only on 9 February that he found out that the employee was working from home.
The Subdistrict Court then answered the question: is there an urgent reason? Urgent reasons are "such acts, characteristics or behaviour of the employee, as a result of which the employer cannot reasonably be required to allow the employment contract to continue". The Subdistrict Court emphasised that immediate dismissal is an extreme measure. All the circumstances of the case, in relation to each other, must be taken into account when assessing whether there are urgent reasons.
The Subdistrict Court indicated that an employer has a right to instruct and may therefore, in principle, determine where an employee works. The employment contract of this employee also stipulates that the work must usually be performed at the office. There is no regulation on working from home. The employee admitted that on 9 February it was clear to her that her employer wanted her to come to the office. Nevertheless, she refused to do so.
According to the Subdistrict Court, this means that the employee did not comply with a reasonable assignment from her employer. In short: refusal to work. In this respect, it was taken into account that the employee worked for a small company and that the administration was done in the office. The fact that the employee has a laptop does not mean that she can decide for herself that she can work at home. Her manager must give permission to do so, and that permission was lacking. The bad weather conditions are also not decisive here, also because “code red” was no longer applicable on Tuesday 9 February. The Subdistrict Court understood that the employee did not want to cycle, but she could also have come to work by bus or taxi.
But all this does not justify the immediate dismissal. The Subdistrict Court found that there was no urgent reason. As noted, immediate dismissal is an extreme measure and the employer had not sufficiently substantiated that the consequence of not coming to the office justified immediate dismissal. In this respect, it was taken into account that the employee could perform her work at home and that she had done so previously. Working from home was therefore not impossible. Hence, to immediately attach the consequence of immediate dismissal to working from home without permission, is too far-reaching. That might have been different if the employee had been warned several times, but that was not the case. A different disciplinary measure - such as a wage penalty or withholding of holiday hours - would have been more appropriate, according to the Court.
In short: the immediate dismissal was not legally valid. The Subdistrict Court awarded the employee the transitional allowance and fixed compensation for unlawful termination of the employment contract. The Subdistrict Court did not award fair compensation, given that (1) the employee had only been in service for a very short time, (2) there were no indications that the employment contract would be extended, (3) the notice period was one month, (4) the transition pay and fixed compensation were also awarded, (5) the employee could also be blamed for the situation, and (6) she already found a new job.
You can read the full judgment here
This ruling illustrates that employers, by virtue of their right to instruct, may determine where an employee works. Without further regulation, employees cannot unilaterally enforce working from home. With regard to immediate dismissal (also called summary dismissal), the established case law applies, from which it follows that there must be considerable circumstances before such dismissal is justified. If possible, employers should use a less severe means.
A sidestep to working from home in the border region: at the moment, the special agreements between the Netherlands and Belgium and between the Netherlands and Germany still apply until 30 September 2021. In short, these agreements mean that - because of the corona pandemic - days worked from home can be treated as days worked in the country of employment. Normally, before the pandemic, cross-border workers are allowed to work at home for a maximum of 25% of their working hours. If this limit is exceeded, cross-border workers will be covered by social insurance in their country of residence instead of in their country of work. This, of course, has major consequences for both employer and employee. The question is: how will politics regulate this after 30 September 2021? After all, it is expected that cross-border workers will also want to continue working from home more often after this date.
The employment lawyers at SPEE advocaten & mediation will keep you informed of all developments!