Remote work from Ecuador: not an acquired right after all, according to the Court

Earlier this year, we wrote a blog post about an employee who had been working primarily from Ecuador for many years. In that case, the subdistrict court ruled that working from Ecuador had by then become a condition of employment. The employer was therefore not permitted to simply require the employee to return to working from the Netherlands. You can read the blog post here. 

The Arnhem-Leeuwarden Court of Appeals has since reviewed the case and reached a different conclusion. You can read the ruling here.

What was the situation again?

The employee left for Ecuador in 2020. Initially, a twelve-month arrangement had been agreed upon with his employer. Due to the COVID-19 pandemic, things did not go as planned, and ultimately, the employee worked largely from Ecuador for several years. Starting at the end of 2021, he was physically present in the Netherlands for an average of only seven weeks per year.

The subdistrict court judge ruled that, over time, this way of working had become an integral part of the employment contract. Factors contributing to this ruling included the fact that the employer had allowed the situation to continue for years and had not systematically evaluated the arrangement. According to the judge, it was therefore no longer a temporary exception but a permanent way of working.

The court of appeals takes a different view.

No acquired right

According to the court, it was not sufficiently demonstrated that the employee could reasonably expect to continue working permanently from Ecuador. A contributing factor was that the original agreement was made for twelve months and was intended as a probationary period. Furthermore, due to the COVID-19 pandemic, that agreement was never implemented as originally intended. According to the court, the actual situation that arose thereafter did not last long enough to establish a permanent term of employment.

The fact that the employer did not explicitly state that the situation would remain temporary does not alter this conclusion. Nor is the fact that the employee performed well while working from Ecuador and that his supervisor was positive about the collaboration sufficient to establish a permanent right to work from Ecuador. According to the court, more is required for that.

The court does, however, acknowledge that the employer could have been clearer. A large organization with a professional HR department should have been expected to better document, both in writing and verbally, that the situation was temporary. That lack of clarity, however, is not in itself sufficient to constitute a term of employment.

What does this mean for employers?

The rulings clearly show that, when determining whether an acquired right has arisen, all circumstances of the case are relevant. Based on those circumstances, the subdistrict court ruled that working from Ecuador had become a condition of employment. The court of appeals assessed those circumstances differently and concluded that this was not the case.

Allowing a particular way of working for many years does not, therefore, automatically mean that an acquired right exists, but it can lead to disputes such as this one. For this reason, when making exceptions, establish clear agreements with the employee. Clearly specify how long the agreement is valid, evaluate it in a timely manner, and agree on what will apply afterward.

If you have any questions about your flexible work policy, please contact Dennis Oud, Tessa Sipkema, Noa Bilogrevic of with me.