Mandatory Return to the Office: Can an Employer Enforce Office Attendance If the Works Council Is Reluctant?

Hybrid work has become an integral part of many companies. Yet more and more employers are reaching the limits of voluntary participation. While management focuses on connection, knowledge sharing, and corporate culture, a purely incentivizing policy often proves insufficient in practice to actually get employees to come to the office. When management then decides to mandate a minimum level of in-office presence, this often meets with resistance from the works council.

In a recent landmark ruling by the Amsterdam District Court (Amsterdam District Court, October 28, 2026, ECLI:NL:RBAMS:2026:10590), the subdistrict court judge ruled on precisely this area of tension. The judge granted the employer substitute consent to implement a mandatory 40% office presence requirement after the works council had refused to give its consent. This ruling provides business owners and executives with important guidance for developing a legally sound office presence policy.

1. The Legal Framework: Right to Issue Instructions vs. Employee Participation

When determining the workplace, two legal pillars intersect:

1. The employer’s right to issue instructions (Article 7:660 of the Dutch Civil Code): As an employer, you have the authority to issue instructions regarding how work is performed and regarding order within the organization. You determine the organizational structure and the conditions for efficient business operations.
2. The Works Council’s right of consent (Article 27 of the Works Council Act): Regulations concerning social policy—including working conditions (paragraph 1(d)), workplace consultations (paragraph 1(i)), and control or monitoring systems (paragraphs 1(k) and (l))—require the consent of the employee representative body

If the Works Council refuses to give its consent, the employer is not left empty-handed. Pursuant to Article 27(4) of the WOR, a request for substitute consent may be made to the subdistrict court.¹ The court will then determine whether the Works Council’s refusal to give consent is unreasonable, or whether the proposed decision is supported by compelling organizational, economic, or social interests of the company.

2. The Case Study: From Non-Binding Encouragement to Mandatory Requirement

In this Amsterdam case, a policy was in place encouraging employees to spend at least 40% of their working hours on campus or at the headquarters. However, monitoring revealed that over a period of more than a year, only 27% of the staff actually complied with this recommendation. Positive incentives and high-quality office facilities proved insufficient.

Management subsequently proposed a formal decision:

• A fixed requirement of at least 40% office attendance (an average of two workdays per week for full-time employees)
• A fixed weekly team day on-site
• Calculation of the percentage per calendar month (adjusted for sick leave, vacation, and business trips abroad)
• A six-month grace period during which the policy would not be enforced
• A hardship clause for exceptional personal circumstances.

The Works Council refused to give its consent, arguing that employees were very satisfied with the existing arrangement, that travel time and expenses would increase, that caregiving responsibilities would be compromised, and that the need for such a requirement had not been conclusively demonstrated either scientifically or statistically.

3. The Subdistrict Court’s Ruling: Reasonableness and Entrepreneurial Freedom

The Subdistrict Court dismissed the Works Council’s objections and granted the employer substitute consent. The key considerations are particularly relevant for entrepreneurs:

3.1 Corporate Culture and Collaboration Are a Compelling Interest

An employer’s aim to promote in-person collaboration, innovation, rapid coordination, and the onboarding of new employees undoubtedly constitutes a reasonable business interest. The judge emphasized that being together in the workplace facilitates informal discussions that simply cannot take place via digital channels. This also applies to positions involving extensive computer work or international contacts.

3.2 No Requirement for “Scientific Evidence” or Strict Necessity

An important victory for employers: the decision does not need to demonstrate that an acute emergency exists, nor is it required that success be guaranteed in advance by hard scientific parameters or baseline measurements. The subdistrict court assesses whether the employer could reasonably have arrived at this policy, and even policy choices that are not strictly necessary can be entirely reasonable.

3.3 Travel time and caregiving responsibilities do not outweigh the employer’s right to provide instructions

Although the court recognizes employees’ personal interests (such as commute time, travel expenses, and caregiving responsibilities), these do not outweigh the employer’s interest in having employees regularly present at the workplace. The labor court judge makes it clear: the employer pays for the employee’s time and effort and may, within reasonable limits, determine where that work is performed. Furthermore, employees hired for a specific work location have the ability to influence their place of residence and the associated commute time. A requirement of 40% office presence (meaning 60% freedom to work from home) is by no means an unreasonable demand on employees.

3.4 Monitoring and Enforcement: Proportionate Oversight Is Permitted

Imposing an obligation is inextricably linked to the authority to verify whether employees are complying with the instructions. The court does not characterize this as mistrust, but as necessary oversight to prevent legal inequality among colleagues. However, the monitoring must be proportionate (for example, through physical presence during team days or inquiries during periodic performance reviews). The systematic collection of digital access card or network data naturally requires a careful privacy assessment and separate consultation with the Works Council.

4. Practical Guidelines for Management and HR