Due to the Covid emergency, remote working turned out to be the only tool able to ensue business continuity. An analysis of the rules that guarantee its correct performance.
Smart working witnessed an exponential increase with the advent of the healthcare emergency that began in 2020; this particular way of working as an employee characterised by the absence of time or space restrictions is primarily aimed at increasing the competitiveness of companies and facilitate a life/work balance for employees, consequently fostering a growth in their productivity.
In terms of the complex emergency regulatory framework that was created in the past year, it has become fundamentally important to ensure the correct performance of remote working.
What is smart working?
Smart working is carrying out paid work without time or space constraints.
This type of working benefits companies and workers because it increases company competitiveness and makes it easier for employees to reconcile their working and living times, and boosts their productivity.
The Covid-19 epidemic saw a rapid and inevitable use of smart working, which proved to be indispensable to ensuring business continuity and protecting workers’ health.
The emergency legislation has streamlined its use by companies, partially derogating from the ordinary regulations dictated by Law no. 81/2017 with the introduction of a “simplified” way to use it.
Once the epidemiological emergency is over, companies wishing to continue using smart working will inevitably have to reckon with the ordinary regulation.
- Smart working: regulatory references
- Smart working during the Coronavirus emergency
- Smart Working: data protection and privacy
- Employer's control and disciplinary power
- Smart worker continuous learning and training
- Case law and insights
Smart working: regulatory references
Smart working is regulated by Law no. 81/2017 on “Measures for the protection of non-entrepreneurial self-employment and measures to encourage flexible times and places in employment contracts”, which came into force on 13 June 2017 (Official Gazette).
It is Chapter II of Law no. 81/2017 to regulate it when art. 18:
- defines smart work as a new and flexible way of organising employment, which does not require the exact definition of work place and time, which is established by agreement between the parties;
- It requires smart working to be carried out partly inside company premises and partly outside, without a fixed location, but under the maximum daily and weekly working hours dictated by law and National Collective Labour Agreement.
Under art. 19 of Italian Law 81/2017 to use smart working, it is indispensable to stipulate a written agreement (as evidence and administrative compliance) between the company and worker.
The agreement, which may be for a fixed term or open-ended, must regulate:
- the performance of work outside the company premises;
- the forms of exercise of the employer’s management power;
- the rules governing the use of work tools;
- the worker’s rest period, technical and organisational measures necessary to ensure the worker’s disconnection from technological work equipment.
- the exercise of the employer’s power of control over the work performed by the worker outside the company premises under Article 4 of the Workers’ Statute;
- conduct related to the performance of work outside the company premises, which gives rise to the application of disciplinary sanctions.
If the smart working agreement is open-ended, the parties may terminate it subject to a notice period of no less than 30 days or 90 days for disabled workers. (art. 19, paragraph 2, Law. no. 81/2017).
The provision specifies either of the contracting parties may terminate for justified reasons before the expiry of the term for a fixed-term, or without notice for open-ended, contracts.
The way smart working is carried out does not affect the smart worker’s right to financial and regulatory conditions not less than those applied to workers who carry out the work exclusively within the company. As part of the agreement with the company, the smart worker has the right to formal or informal lifelong learning and periodic certification of the relevant skills (Art. 20 Law no. 81/2017).
Smart workers are entitled to the tax and contribution incentives recognised by Law linked to productivity and efficiency (Art. 18 Law no. 81/2017).
The smart worker must be protected from health and safety at work risks as if they were inside the company.
To this end, Art. 22 of Law no. 81/2017 requires the employer to provide workers with written information outlining general and specific risks related to the work performed at least once a year.
The workers’ safety representative (“RLS”) must receive the same information.
The worker is obliged to cooperate in implementing the preventive measures prepared by the employer to cope with the risks associated with work performed outside the company premises.
Smart working during the Coronavirus emergency
The Covid-19 pandemic and related need to limit workers’ movement have led to a focus on smart working, which results in a different function.
Smart working has gone from being a tool designed to increase productivity and improve the “work-life balance” to a fundamental tool for containing the pandemic wave and reduce the risk of transmission of the virus in the workplace.
As part of the measures adopted for the containment and management of the COVID-19 epidemiological emergency, the Government provided instructions on how to access smart working.
A simplified procedure has been introduced according to which
- smart working can be implemented by sending an electronic communication to the Ministry of Labour and Social Policies with the names of the workers concerned and the date of termination of the smart working service;
- employees can be placed in smart working mode even without individual agreements provided for by the ordinary rules;
- the obligations to provide information on occupational health and safety risks under Article 22 of Law no. 81/2017 are fulfilled electronically, using the documentation made available on the INAIL website.
Currently, private employers can use simplified smart working until 31 December 2021 under Law 87/2021 converting into Law Decree Law 52/2021 ( Reopening Decree) [https://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2021-06-21&atto.codiceRedazionale=21G00104&elenco30giorni=true]
Emergency regulations on smart working
The Government had initially provided regulations on smart working with Prime Ministerial Decree of 23 February 2020, to make its use more immediate in the areas considered to be at greater risk for the coronavirus emergency, i.e. the red zone municipalities. As an extraordinary measure to facilitate the regular work performance, the Government had allowed the activation of smart working in these areas, even without an individual agreement required by the reference legislation.
Subsequently, Prime Ministerial Decree of 25 February 2020 provided for the extension of the use of simplified smart working to all employment relationships until 15 March 2020 for employers having their registered or executive office in the Regions of Emilia-Romagna, Friuli-Venezia Giulia, Lombardy, Piedmont, Veneto and Liguria, and for workers residing or domiciled there and working outside those regions.
This option was extended across the country under Prime Ministerial Decree of 1 March 2020. Furthermore, the various recent Prime Ministerial Decrees that followed, recommended it as an indispensable tool for containing the contagion (most recently with the Prime Ministerial Decree of 14 January 2021 and then Prime Ministerial Decree of 2 March 2021.
The “Shared protocol for the regulation of measures to combat and contain the spread of the Covid-19 virus in the workplace“, signed by the Government and the Social Partners on 14 March 2020, supplemented on 24 April and updated on 6 April 2021 , fits into this framework.
The Protocol recommends the maximum use of smart or remote working by private employers for activities that can be carried out at home or remotely and those that are not suspended.
Moreover, on 7 December 2021 the “National Protocol on agile work” signed by the Government and 26 employers’ and employees’ trade unions.
This is an interconfederal agreement that, while having a political-programmatic value (as it requires a further step to become binding), contains the guidelines for national, territorial and corporate collective bargaining). The Ministry of Employment and Social Policies website states that this is the second measure in Europe to regulate this institution.
Highlights of the Protocol are:
- voluntary adherence and individual agreement;
- organization of agile work and regulation of disconnection;
- working tools;
- health and safety at work;
- accidents and occupational diseases;
- trade union rights;
- equal treatment and equal opportunities;
- fragile and disabled workers;
- welfare and inclusiveness;
- protection of personal data and confidentiality;
- training and information;
- bilateral monitoring observatory;
- incentives for collective bargaining.
The Protocol, in addition to recalling that adherence to agile work is voluntary and subject to the signing of an individual agreement, specifies that any refusal by the worker to adhere to or carry out their work in agile mode does not integrate the extremes of dismissal for just cause or justified reason, nor is it relevant on a disciplinary level.
Moreover, the Protocol envisages the possibility of dividing the agile work day into time slots; however, the obligation remains to identify, in any case, the disconnection time slot in which the worker must not carry out his/her work activity. In this regard, the employer must adopt specific technical and/or organizational measures to guarantee the disconnection band.
With regard to the place of work, the Protocol specifies that the worker is free in its identification, provided that the same has characteristics such as to allow conditions of security and confidentiality. The Protocol highlights how collective bargaining may identify unsuitable places for reasons of personal safety or protection, secrecy and confidentiality of data.
The employer’s obligations, already provided for by law, in terms of health and safety, training and information, and prohibition of discrimination, remain confirmed.
Right to smart working during the Covid-19 emergency
Smart working was encouraged by the emergency measures adopted by the Government, which constituted, a mere moral persuasion at least in the first emergency phase. However, until March 31, 2022, frail workers normally carry out their work in smart working, also through the assignment to a different task included in the same category or area of classification, as defined by the collective agreements in force, or the performance of specific professional training activities, including remotely (see art. 26, para. 2-bis, Decree Law no. 18/2020, converted into Law no. 27/2020, as most recently amended by Decree Law no. 221 of December 24, 2021).
If the work cannot be performed in an agile mode, until the same date of February 28, 2022, the period of absence from work for fragile workers is equivalent to hospitalization and is not counted for the purposes of the period of comporto.
Although not strictly related to the current emergency situation, it should be noted that the Budget Law 2019 (Law 145 of December 30, 2018) introduced a rule favouring the use of smart working for two categories of workers, deemed to have significant family needs worthy of protecting.
Applications for employment relationships in smart working from female workers who are mothers in the three years following the maternity leave have priority – as provided for by art. 16 of Decree Law no. 151/2001 – and parents with disabled children under art. 3, paragraph 3, of Law 104/1992.
Difference between smart working and teleworking
Conceptually, smart working can be considered an evolution of teleworking, from which however it differs.
Teleworking in the private sector is governed by the National multi-industry Agreement of 9 June 2004, which the sector’s collective agreements may supplement
Art. 1 of the National multi-industry Agreement states that teleworking “constitutes a form of organisation or performance of work using information technology within an employment contract or relationship in which work, which could be carried out on the company premises, is regularly carried out outside the company premises.”
Teleworking is a different work method that is carried out outside the company or in a mixed-mode, i.e. partly within the company and partly outside, using equipment connected via a telematic network to a central company unit to allow data exchange.
Teleworking is a simple transposition of the workstation to a physical location other than the company premises, which in most cases coincides with the teleworker’s home where the employer sets up a workstation. The employer transfers the same workplace responsibilities in the chosen location and, therefore, must check that it is suitable and safe, including on-site access.
As seen in the previous paragraphs and further analysed later, smart working represents a radical rethinking of work in terms of place and time, presupposing flexibility and adaptation of the worker according to the tools available and without a fixed workstation.
Like teleworking, smart working does not entail (i) any substantial modification of the general working conditions or legal position and (ii) a difference in financial and regulatory conditions compared to those of a worker performing similar tasks on company premises.
Finally, as in teleworking, smart working is a voluntary choice by the employer and worker (except in this health emergency phase when the employer may unilaterally arrange it) and may be included in the individual employment contract at the beginning or later during the relationship.
Working time, rest and right to disconnect
Work is free from space and time limits in smart working while respecting the maximum daily and weekly working hours set by Law and collective labour agreement.
Working hours decided autonomously by the worker must meet the company’s business and production needs. However, the worker cannot always be “connected” to the work equipment.
Under Art. 2087 of the Civil Code, the employer must take the necessary measures to protect the smart worker’s psychophysical integrity. Disconnection constitutes a preventive measure to protect the smart worker’s physical and moral personality.
Paragraph 1 of Art. 19 of Law no. 81/2017) although without providing a legal definition, states that “(…) the agreement must include worker’s rest period, technical and organisational measures necessary to ensure the worker’s disconnection from technological work equipment.” The individual agreement, signed by the employer and worker, must include rest periods and technical and organisational measures to interrupt computer connections and deactivate electronic devices.
Even without legislator’s instructions on the methods to protect disconnection, the clear link to the right to health (a fundamental right guaranteed by the Constitution, which is the employer’s obligation) provides adequate protection.
The worker, who is not allowed to exercise the right to disconnect, is exposed to the risk of techno-stress, i.e. the syndrome that affects the individual who has to manage complex forms of knowledge and the flow of information provided by new technologies.
Techno-stress was recognised in 2007 as an occupational disease following a Turin Public Prosecutor’s Office ruling. It is among the emerging occupational health and safety risks because of the digital transformation, as a specific type of work-related stress.
A useful tool that allows the protection of the right to health during smart working in the Italian legal system can be found in working time regulations, which is
- Constitutionally linked to Article 36, paragraph 2 and 3 of the Constitution, which refers to rest periods and maximum working time;
- Art. 7 of Italian Legislative Decree no. 66/2003 guarantees the right to 11 consecutive hours of rest every 24 hours; and,
- Italian Legislative Decree no. 81/2008 [Gazzetta Ufficiale] states that each employee working remotely is entitled to a 15-minute break every 120 minutes of continuous work on a video screen.
The European Parliament issued a Resolution on 21 January 2021 in which it invited the European Commission to submit a draft Directive ensuring that all workers had the right to disconnect from the IT devices used to carry out their work. The Resolution defines this right for the first time as “the right of workers not to engage in work-related tasks or communications outside working hours using digital media, such as phone calls, emails or other messages.”
In line with the EU guidelines, the national legislator has sanctioned and strengthened the right to disconnect with conversion law of 6 May 2021, adding paragraph 1-ter to article 2 of Decree Law no. 30/2021. Specifically: “Without prejudice to the regulation of smart working established by national collective agreements for the civil service, the legislator recognised that smart workers have the right to disconnect from technological equipment and IT platforms, under any agreements signed by the parties and without prejudice to any agreed periods of availability. The exercise of the right to disconnect, which is necessary to protect the worker’s rest time and health, cannot affect the employment relationship or pay.“
The right to disconnect became Law, and for the first time, our legal system described this right.
Smart Working: data protection and privacy
Smart working has privacy implications.
Regulation (EU) 2016/679 on the protection of personal data (the “GDPR”) introduced the accountability principle, which requires the data controller (in this case, the employer) to identify and manage the risks relating to the processing carried out in compliance with the principles of data protection by design and by default.
Since smart working can be performed outside the company premises and the employee’s home, the employer should conduct a risk and impact assessment. This should analyse all existing and potential risks, identifying the appropriate technical and organisational security measures to ensure data protection (see Article 35 of the GDPR).
For “new processing” of personal data directly resulting from the introduction of Smart Working plans, the employer must update and supplement the Register of data Processing Operations (Article 30 of the GDPR).
In essence, the employer who places a worker in smart working must update/implement those measures that ensure data security in such a working environment.
Employer’s control and disciplinary power
Smart working understood as a different method of carrying out work that gives a higher value on the result rather than the time, place and procedures, inevitably entails a reinterpretation of certain employer prerogatives.
These include the employer’s power of control over the activity carried out by the agile worker and its disciplinary power.
The employer may legitimately exercise the power of control to verify that the worker’s performance is correct and diligent and protect the worker ensuring their right to disconnect, checking that the service does not extend beyond the agreed time.
The employer may exercise such power only through the technological tools used by the employee to perform work, which makes this a remote form of control (at least for the service carried out outside the company premises).
Art. 21, paragraph 1. of Law no. 81/2017 requires that the individual smart working agreement regulate the employer’s power over the service provided by the employee outside company premises under Art. 4, Law no. 300/ 1970 and subsequent amendments.
Art. 4 of the Workers’ Statute, as reformed in 2015 with the Jobs Act, applies to smart working.
The above provision states that (i) audio-visual equipment and other tools which allow the remote monitoring of workers’ activities may be used by the employer exclusively for organisational and production requirements, work safety and the protection of the company’s assets and (ii) such tools may only be installed under a collective agreement signed with the company trade union representatives (RSA) or the unitary trade union representative body (RSU) or, in the absence of an agreement, subject to authorisation by the National Inspectorate or the Ministry of Labour (paragraph 1 of Art. 4 of the Workers’ Statute).
These restrictions do not apply to the tools used by the worker to perform the work and which are indispensable to it, and those for controlling access and attendance (paragraph 2 of Art. 4 of the Workers’ Statute).
Given the tools used by the smart worker (PC, company mobile phone, etc.) generally fall within those “used by the employee to work”, the employer is exempt from the prior trade union or administrative authorisation procedure described above.
This does not mean that the employer can control the work carried out by the smart worker without complying with any rules.
The third paragraph of Art. 4 of the Workers’ Statute states that the information collected through the tools used by the worker may be used for employment purposes. This is conditional that the worker has been informed in advance of the work tools use methods and how the checks are carried out under the privacy legislation.
Massive, prolonged and indiscriminate checks should be avoided. Checks must be carried out under the following principles:
- necessity: all systems must minimise the use of workers’ personal data;
- fairness: employees must be aware of the methods used to process their data;
- relevance and non-excessive: control must be carried out by those in charge who are made known to employees.
As for the exercise of disciplinary power, Art. 21, paragraph 2, of Law no. 81/2017 states that the agreement between the employer and worker must identify the conduct for the performance of work outside the company premises, which gives rise to the application of disciplinary sanctions.
The employer must identify the rules of conduct with which smart workers must comply (e.g., where to carry out the service, the use of work tools, working hours and any availability periods, the right/duty to disconnect, and compliance with health and safety measures). These must be included in the individual agreement or a specific company regulation and refer to the sector’s National Collective Labour Agreement and disciplinary code to identify the relevant sanctions.
Smart worker continuous learning and training
Art. 20, paragraph 2, of Law 81/2017 states that the smart worker is entitled to lifelong learning as part of the agreement with the employer, provided with formal, non-formal or informal methods, and periodic certification of the relevant skills.
The rapid evolution of technological systems and tools and the change in the way work is carried out compared to the standard model make professional training for smart workers essential.
This can be done by providing vocational training and professional development courses, which can occur while working remotely or in attendance.
It is advisable to provide specific training courses for smart workers to ensure that they are correctly oriented to the new working approach and can carry out their smart work effectively and safely.
The subjects covered by the training may concern, for example: (i) health and safety; (ii) methods and techniques for carrying out smart working; (iii) correct use of the company’s technological equipment; (iv) privacy and confidentiality of company data; (v) enhancing digital skills related to the work process; (vi) enhancing transversal skills such as time management, flexibility and the ability to coordinate with others.
Case law and insightsHome working and Data Protection (Top Legal Focus Privacy & Data Protection, February 2021 – Vittorio De Luca, Elena Cannone) – De Luca & Partners (delucapartners.it)
The right to smart working and the assessment of task compatibility (Il Quotidiano del lavoro of Il Sole 24 Ore, 1 February 2021 – Alberto De Luca, Alessandra Zilla) – De Luca & Partners (delucapartners.it)
The “Rilancio” Decree’s conversion law: news about smart working at the time of Covid-19 (Guida al Lavoro de Il Sole 24 Ore, 31 July 2020 – Vittorio De Luca e Antonella Iacobellis) – De Luca & Partners (delucapartners.it)
Smart or agile working (Guida al Lavoro de Il Sole 24 Ore, 12 June 2020 – Vittorio De Luca, Antonella Iacobellis, Raffaele Di Vuolo, Martina De Angeli) – De Luca & Partners (delucapartners.it)
Smart working and the right to disconnection: (Agendadigitale.eu, 8 May 2020 – Vittorio De Luca, Elena Cannone) – De Luca & Partners (delucapartners.it)
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