The proposed act will make it more difficult for Dutch employers to refuse requests to work from home. This article highlights the most extensive tax, social security and labor law consequences that the proposal could trigger in cross-border situations.

Current legislation

Under current legislation, employers with at least 10 employees must consider an employee's request to work from home. Employers are not required to grant such requests, but may do so based on their own considerations. There are no guidelines applicable by which employers are bound in their decision-making process. However, employers are obliged to discuss refusals with the employee.

Work where you want proposal

Under the proposed act, a request to change an employee's place of work will henceforth be treated the same as a request to change the employee's working hours. As a result, employers would no longer be allowed to reject such requests based on their own considerations. Rejections would only be possible if a compelling business or service interest prevents the employee from working from the desired location. This is a strict and rigorous standard.

Employers may also reject requests to change the place of work if it concerns a location outside the European Union, at a location other than the employee's home address or at unsuitable locations that are not commonly used to perform work for the employer. Depending on the work involved, it is also possible that the work cannot logically be performed from home. 

Consequences

There may be consequences applicable if a request to change the place of work is granted. Most commonly, the employer would be obliged to set up a proper (home) workplace. However, the consequences are more significant in cross-border situations.

Employees that work from home and reside in another country than where their employer is established will most likely owe tax on (part of) the salary in their country of residence. The social security position of cross-border employees may also change. Generally speaking, employees are socially secured in their country of residence if they work there at least 25% of their working hours. If this occurs, Dutch employers must pay social security contributions and possibly tax on the employee’s salary according to the legislation of the employee's country of residence. If so, employers are often required to maintain local payroll records (in addition to Dutch payroll records).

In addition, the labor law of the employee's country of residence may become applicable to the employment relationship if that’s the country where the employee habitually carries out his work. These laws may very well differ considerably from Dutch law.

If an employee performs certain duties and the home office meets certain qualifications, it may also be considered a "permanent establishment" for tax purposes. This means that the employer may have an obligation to file a local tax return and potentially pay local taxes on profits. The exact amount of profit that is subject to tax varies and often leads to discussions with foreign tax authorities.

Effective date

EU countries are keen to better facilitate work from home for cross-border workers by amending current legislation. However, there are no concrete plans in this regard yet. It has been announced that until July 2023, if certain conditions are met, the applicable social security legislation for existing cross-border employees will not change.

The work where you want proposal is currently being considered by the Dutch Senate and has not yet been voted on. However, during the discussion of the proposal, it has become clear that tax and social security implications faced by the employer (and employee) due to working from home are not necessarily considered to be compelling business or service interests

In brief,  the proposed Work where you want act could have significant impact, particularly in situations where work is carried out across borders. If you are facing such a situation, it is recommended that you seek professional advice.

Would you like to know more about the (inter)national aspects of cross-border employment? Or do you need help with other Global Mobility issues? Our colleagues from Global Mobility Services can advise and assist you. Call Loes van Baast, Senior tax advisor, on +31 (0)40 29 42 601 or send Loes an e-mail.