The Works Council's right of consent

Since the coronavirus pandemic, working from home has become increasingly common. At many companies, both employers and employees find hybrid working to be a pleasant experience. Nevertheless, we are seeing some employers wanting their employees to come to the office every day again. But can they do that without consulting the Works Council? Read more here.

What was involved in this case?

At Caterpillar Work Tools BV, working from home has been part of the personnel policy since 2016. The Works Council (OR) gave its consent at the time. In 2022, employees are encouraged to return to the office on a voluntary basis. In October 2023, it was announced that all employees would be required to be in the office at least three working days a week from 1 January 2024. However, this requirement was not complied with, after which Caterpillar announced in December 2024 that this point would be included in the “performance cycle”. In the spring of 2025, the CEO also announces that, from 2 June 2025, all employees will be expected to return to the office five days a week: the so-called Return-to-Office policy.

The Works Council objects to this. The Works Council argues that the decision to change the home working arrangement is a decision that requires consent under Section 27(1)(e) of the Works Councils Act (WOR), but that the employer has not sought the consent of the Works Council. For this reason, the Works Council has declared the decision null and void. However, Caterpillar maintains its position and the Works Council initiates summary proceedings in court.

What is the court's ruling?

According to the court, the Return-to-Office decision is indeed a decision for which Caterpillar should have sought the consent of the Works Council. After all, the purpose of that decision was to change the existing working conditions. The purpose of the decision is to abolish the existing work-from-home policy, which means that employees will now have to work at the office every working day. The court considers that working conditions are fundamentally different when someone has the freedom to work from home one or more days a week than when someone has to work the entire working week at the office. Working from home has a direct impact on the workload (less travel time, the possibility of flexible working hours) and the work-life balance, and therefore also on the psychosocial workload and thus on the well-being of employees.

Conclusion: the court prohibits Caterpillar from implementing the Return-to-Office decision as long as the Works Council has not agreed to it or, if the Works Council does not give its consent, the subdistrict court has not given its permission. In addition, the subdistrict court imposes a penalty on Caterpillar, which can be substantial.

You can read the full judgment here.

Conclusion

Employers who wish to introduce or phase out a work-from-home policy would do well to consider the legal aspects involved. This starts, of course, with a good work-from-home agreement and an updated staff handbook. This ruling also shows that the Works Council has an essential – legal – role to play. Do you have any questions about employment law, working from home or other issues that arise in the workplace? The employment law specialists at SPEE Solicitors & Mediation would be happy to discuss this with you over a cup of tea.