Rethinking Work Time: Legal Transformation in The Netherlands

The recent legal discourse surrounding the categorisation of pre-shift login time as compensable work highlights evolving labour standards differentiating between office-based and remote working. This article examines the legal framework, key judgments, and their implications on the definition of “work time” within Dutch labour law.

Dutch labour law, historically rooted in the distinction between actual work time and rest periods, is governed by the Working Hours Act (Arbeidstijdenwet) and the Minimum Wage and Minimum Holiday Allowance Act (Wet minimumloon en minimumvakantiebijslag). These statutes establish the foundation for defining work time, compensation, and employer obligations. However, the digital transformation of workplaces has propelled a reassessment of these traditional definitions, leading to pivotal legal inquiries into activities like login time.

The judicial reconsideration of work time began with lower court decisions challenging the unpaid status of pre-shift preparations. A landmark case involved a wage claim by a call centre employee against Teleperformance, centring on whether pre-shift login time should be compensated as work time. The employer’s Planning Rules mandated that employees report to their supervisors ten minutes before the start of their shifts to log in and start necessary systems. The court found this time to be compensable work time under Dutch labour law, as these activities were necessary for the employee to perform their duties effectively. This decision set a precedent for subsequent cases, highlighting the evolving interpretation of work time.

Teleperfromance did not accept the judgment and initiated an appeal. A significant turning point came with The Hague Court of Appeal's ruling in favour of the call centre employee seeking compensation for ten minutes of pre-shift login time. This decision underscored that activities required by the employer and indispensable for the execution of work duties constitute work time and should therefore be compensated. This ruling aligns with the definition of work time under the Working Hours Act and the Minimum Wage and Minimum Holiday Allowance Act, affirming that any time an employee performs tasks required by the employer is considered work time.

Teleperformance disagreed with the court’s ruling and lodged a cassation procedure with the Dutch Supreme Court (Hoge Raad der Nederlanden). In a recently published opinion, Advocate General Ruth De Bock advised the Supreme Court to dismiss Teleperformance’s appeal. The final word rests with the Supreme Court, but it is anticipated that the judgment will have significant consequences for the call centre industry and beyond.

A contrasting perspective emerged with cases involving remote workers. Courts have differentiated between office-based and remote employees, introducing a nuanced approach that reflects the changing nature of workplaces. For remote workers, who could log in and prepare for their shifts in a more flexible environment, compensation for pre-shift activities is not always deemed necessary unless these activities are clearly mandated by the employer and restrict the employees’ use of their time.

These rulings signal a shift towards a more inclusive understanding of work time, acknowledging the integral role of preparatory activities. This evolution challenges employers to revisit their operational policies and emphasises the need for clear agreements on compensable activities. The distinction between remote and office-based work raises questions about fairness and equity, necessitating a balanced approach in policy formulation.

For legal practitioners and general counsels, these developments underscore the importance of staying abreast of labour law evolutions, advising clients on compliance, and navigating potential disputes. The trend towards recognising various pre- and post-shift activities as work time may prompt legislative responses, further shaping the labour landscape.

The redefinition of work time in The Netherlands reflects broader shifts in labour practices worldwide. As technology blurs the lines between work and personal time, the Dutch courts’ approach offers a glimpse into potential future labour standards. Employers, employees, and legal advisers must adapt to these changes, ensuring fair compensation and equitable treatment in the modern workforce. This legal transformation not only redefines work time but also reinforces the need for adaptability in labour laws to reflect contemporary work realities.