RTO Mandates - The Booking court case

Return To Office (RTO) mandates are an ever-increasing presence in The Netherlands. The latest of these is Booking.com, where they took their Works Council (ondernemingsraad) to court to try and push their mandatory 40% office days policy through.

The full court case is available here

Disclaimer: This document deals with legal issues and is intended to provide an informational resource only. Tech Workers Coalition doesn't in any way provide legal advice, so don't rely on this document as though it would constitute legal advice.

Earlier this year, Booking.com requested consent to change the working conditions for their workers. The status quo was 20% office hours, with 6 mandatory team days per quarter (i.e. essentially half the office days), and the general encouragement to be in the office 2 days (40%). Up until now, only 27% of staff were showing up 40% or more of the time. Booking management wants this number to be a strict 40% minimum (negotiated down from 50-60%), also with enforcement (e.g. individual tracking and monitoring reported to direct line managers and higher up).

Booking’s Works Council said “No” to the change of a mandatory 40% work week in the office. To resolve this, Booking and the Works Council headed to court to plead their case. Eventually, the Judge sided with Booking, saying it was a reasonable request.

The rest of this post will dive into the details of the court case. The summaries below were translated from Dutch to English, and summarised into more daily language, so some details may be incorrect or nuance might have been lost.

ℹ️ Info: A company with more than 50 employees in The Netherlands is required to have a Works Council (ondernemingsraad, aka, OR). Changes to change the “working conditions” (e.g. hours of work, location of work, etc), triggers a Request for Consent (instemmingsrecht) from the Works Council. A Works Council is an employee-elected body that works with “The entrepreneur” (directly translated), to “ensure the ideal functioning of a business”.

A Request for Consent requires an explicit “Yes” or “No” with a stand-down period for subsequent requests.

The court docket #

The court docket flows in the following order:

• Summary of facts (1)
• Request and defense (2-7)
• Judgement (8-23)
  • Summary of laws/rights (8-11)
  • The request and how it will be reviewed (12-13)
  • Is it a reasonable interest to require 40% office attendance [in general] (14-19)
  • Is it a reasonable interest to require 40% per month, instead of per quarter (20)
  • Is it a reasonable interest to allow Booking to monitor the attendance (21-22)
  • Can there be an exception for people that are long-term absent? (23)
• Conclusion (24-26)

Note: The numbering in the official link has many duplicate numbered articles, the above numbering fixes that issue.

The following sections will summarise the details in the court docket, in roughly the same flow above. Be aware that this was translated and then summarised/interpreted by a human, so nuance might be missed or adjusted.

Summary of facts + timeline #

Pre-COVID: Work From Home (WFH) was only allowed with the “Explicit consent” of the manager (e.g. needed to be explicitly approved).

From July 2020, the working policy changed to fully voluntary office days - as a result of the pandemic

After COVID lockdowns ended (2022), a hybrid model was introduced. There was no limit on the maximum or minimum number of days in the office. Staff were encouraged to spend a portion of their time at the office, but with no specific guidelines. Booking states that they explicitly stated “We are not a remote company” during this change.

In July 2023, the working location policy was updated with the consultantation of the Works Council. The key points were as follows:

• Encouragement to work from the office 40% of the time
• Measurements of office utilisation will be done quarterly (and anonymously)
• Teams agree on a day in the office. Mandatory 6 days per quarter (e.g. 50% of the weeks) must be team days.

In the interim, only 27% of people were working 40% of the time (or more) from the office. As such, Booking started to consult with the Works Council between November 2025 and March 2026 to increase the number of days in the office/attendance. The original proposal was to go to 50-60% (2.5-3 days)

In March 2026: Booking conceded ground from 50-60% to 40% mandatory hours after the Works Council pushed back. The Works Council indicated that they were still not in agreement with the 40% mandate. Booking sends an official request to the Works Council in April 2026, this gave the Works Council 6 weeks to provide an answer. In May, the Works Council returned their answer: “No”, and that they would be staying this path in the long term.

June 2026: Booking said they were no longer able to do a co-determination of the policy (e.g. consultation has run its course), and as such they would go to the subdistrict court. The Works Council challenged this (as is required) 4 days later. 2 days later, Booking notified all staff the current state of affairs.

Booking’s reasoning #

The generalised summary of Booking’s reasoning is as follows:

• It is important that people regularly meet in the office
• The new policy had the goals of:
  • Maintaining and promoting company culture and connection
  • Training and development, especially for new hires
  • Effective cooperation between teams
• Consulting, learning from each other, forming one culture together are all things that go better when people are actually together
• There is a general trend in the sector to go toward 3 days, if not full time in the office
• The need to change from encouragement to a specific policy arose because the current policy was seen as unclear
• Managers and workers became discouraged if they rarely meet their colleagues in the office

Booking also mentions the specific law it was invoking, namely Article 7:611 of the Burgerlijk Wetboek (The Civil Code of The Netherlands). Very briefly, this gives the employer an “instruction right” over the employee. Booking said this gives them the right to mandate 40% office days.

The Works Council defense #

Again, a generalised summary:

• The objectives/goals from Booking are not concrete enough, which makes it questionable whether a new policy is needed
• There was no room for a less severe/drastic solution
• The bluntness of the policy appears to outweigh any intended benefits
• There is insufficient mitigation for the negative impacts to existing staff
• The policy mentions new tracking, but no policy around fair and equal treatment/enforcement
• The existing policy requires “encouragement” to work 40% of the time in the office; however, the general impression was that no real “encouragement” existed.
• Specifically, the new data tracing raises data security concerns, especially since there was no Legitimate Interest Test, and the scope was increased to allow upper management access to individual data.
• There was no ability to provide an exception based on a person’s circumstances - specifically long-term absence and/or other obligations.

At a later point in the proceeding, some additional data points were shared. Specifically:

• There was a survey sent to all ~6,000 employees. 2,857 answered.
• 87.1% of respondents were were satisfied with the existing policy
• 37% of respondents said their caring responsibilities would be negatively impacted
• 13.7% of respondents said their health would be negatively impacted
• Respondents mentioned a lack of ability to focus on office days
• There is a loss of time and extra costs due to commuting requirements (56% living > 11km from the office)
• There would not be enough space in the office during peak days if 40% were mandated

The judge’s rulings #

Some general comments were offered by the judge. Namely, that Booking had provided sufficient space for input, as shown by their dropping of the 50-60% requirement to 40%.

The general summary of judgements (e.g. based on each individual question):

Does Booking have a reasonable interest in setting a 40% minimum attendance

Yes. Booking aims to promote collaboration, knowledge sharing, and innovation by increasing presence in the workplace. It is likely that the physical interactions of employees contribute to better cooperation, more effective coordination and more mutual trust. That physical interaction can contribute to better integration of new employees, switching faster, inspiring each other in the further elaboration of ideas, and a constructive attitude toward the ideas of others is perhaps not a hard scientific conclusion, but a widely shared assumption. […] It is important to see each other with some regularity.

It is not considered over taxing to mandate workers to be at the office 40% of the time. Even if they all lose time and money on commuting, or are less available for caring tasks, that is not an interest that outweighs the reasonable interest of Booking to see its employees in the office with some regularity. The fact is that Booking pays its employees to do assigned tasks, and part of those instructions is the location of work. Booking has never been fully remote, and the choice to work there is on the employee with this knowledge. The employee is in control of where they live with the knowledge that the office is based in Amsterdam, and that the choice of travel distance is thus on the employee.

The Works Council raised a valid concern that there is not enough capacity; however, that will require Booking to spread the team days across the week instead of having Tuesdays and Thursdays as peak days. Booking does have an obligation to provide space if this is necessary.

Does Booking have a reasonable interest to mandate 40% per month instead of per quarter

Yes. There were not any arguments against this from the Works Council. The 40% attendance is based on the number of working days, so this excludes absences, vacations, and business trips.

Does Booking have a reasonable interest to monitor the attedance

Yes, however with nuance.

The request to the judge during the hearing was whether tracking individuals’ data systematically requires another request to the Works Council. As such, this was not considered as part of the current ruling; however, in order to implement a fair and equal application of the 40% mandate, this data could be requested from an individual by their manager. Additionally, it is possible the manager already possesses that information since the manager should also be at the team meetings.

If there is a change to the policy, and it is deemed that the Works Council needs to consulted, then that should indeed take place (e.g. Wet Ondernemingsraden aka WOR should be followed).

Can there be an exception for people who are long-term absent

Yes, however that comes only with a temporary waiver of the 40% rule. It is in the general interests of being a good employer to provide an exception, however that is not done without limits. The Works Council provided a number of exceptions to the temporary waiver (wanting a permanent waiver); however, that was declined in favour of a temporary one.

Opinions from the author #

It was surprising to see Booking’s justifications. Booking is known in the sector for being a data driven company; however, it appears as though their reasoning was largely based on impressions, rather than on empirical evidence. They mention hybrid working as being a major motivator for companies; however, they didn’t appear to provide evidence for the 40% specific mark, and/or where the boundary actually lies. It doesn’t feel unreasonable to suggest this was left out so that future requests could be made to increase the office days. Giving a measured number here would box them into a specific percent.

What I found doubly interesting is that the judge’s ruling feels very vibe-based. To know knowledge, the legal test here is “Is it a reasonable interest for Booking to change this policy”. I would have expected more details/justification (e.g. references to the market), rather than what essentially feels like it boils down to “Seems fine”.

It feels as though “what is reasonable” is still stuck in the pre-COVID era. I myself in those times would have scoffed at the current request; however, in recent years, it’s hard to deny the change that COVID accelerated with regard to working from home. In isolation and without the history of pre-COVID times, it seems strange that a judge would approve this request based on the evidence provided by Booking. Yet as always “We are not lawyers”.

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Cover image by KATRIN BOLOVTSOVA on Pexels