Lexology GTDT: Market Intelligence – Remote Working in Italy

1 What are the most consequential issues that an employer should consider when determining its post-covid-19 remote work policies?

Remote working, also defined under Italian law as ‘smart working’ or ‘agile work’, was conceived by the Italian legislator as a way of working characterised by the absence of time or space constraints and organised by phases, cycles and objectives. It was envisioned to achieve a level of work-life balance and increase productivity. Although many Italian employers had always been rather reluctant to embrace the idea that their employees would not come to the office to perform their tasks, in the last years we have seen a considerable recourse to remote working as one of the main instruments able to contain the spread of the pandemic. Despite the circulation restrictions imposed by the government in the wake of the lockdowns caused by the pandemic, companies were able to operate and provide their services through remote working avoiding the interruption of their activities. Beyond the fact that this modality of carrying out the working performance has represented a useful remedy to cope with the pandemic, it is clear that it is not only an answer to a transitory emergency, but it is contributing to a real transformation of the traditional work. To this end, it is fundamental for employers to identify the key issues connected to such change in a labour market, in which employees would not get paid by being in the workplace for the entire working hours, but for achieving goals and performing well. While the possibility of determining ‘where and when’ to work is more functional and would potentially allow employees to work endlessly, such flexibility has to be properly regulated so that this new working procedure will not endanger neither the employees or the employers. Employers remain responsible for the health and safety of their employees and, therefore, they have to protect the psycho-physical integrity of the worker regardless of the place where the work is performed. It is required to guarantee that employees would receive adequate information on the prevention measures applicable to the workplace. Moreover, as remote working would expose employees to constant work-related communications such as e-mail and messages, this circumstance shall be monitored by proper tools that would effectively allow workers to disconnect from work. Working time shall not exceed its legal and contractual duration. The right of disconnection is expressly acknowledged under the law. It is also stated that those who exercise the right to disconnect shall not be subject to any negative consequences on employment relationship, also in terms of economic treatment. Employers are not prohibited from sending their employees email outside of working hours, but the law recognises the employee’s right not to open it during the hours of disconnection, without thereby incurring disciplinary sanctions or other retaliatory measures. Some national collective bargaining agreements and some corporate policies have already included specific regulation of the ‘right to disconnect’ from work. However, there are still many companies that have not taken any material action to enable the exercise of the right of disconnection, and this is one of the matters that company policies shall address. In addition, considering that employees may access work material from anywhere through any work device or even through personal tools, it is fundamental that they are informed about the correct use of the work tools they are assigned and made aware of the privacy and security policy in force to avoid sensitive information falling into ‘insecure environment’. The obligations that remote workers shall comply with, however, shall be expressly stated under the policy or the individual agreements governing remote working, and employees must be made aware of any disciplinary consequences of the actions (or the omissions).

2 Pragmatically speaking, is there a threshold to determine when working remotely (from home or otherwise) requires local rules to apply?

There is no minimum threshold to determine when remote working (or smart working) rules shall apply. Once the employee and the employer agree that the employee may render part of the working activities outside the company premises – even for half day a month – the relevant remote working rules shall apply. Moreover, the remote working we have seen during lockdowns was just an emergency adaptation of office work at home better known in Italy as teleworking. Teleworking (ie, working remotely during the entire working hours) was conceived more than 20 years ago as a mere relocation of the workplace: from office to home. However, because of the difficulties employers might have had in trusting their employees to work from home, teleworking did not have a great impact on the Italian work environment scene. Conversely, remote working as envisaged by the Italian legislator in 2017 would include some days in the office, fixed or as needed, and the possibility to work from workplaces other than the company premises or home. As we can see, remote working (or smart working) differs from teleworking by its flexibilities and the possibility for an employee to establish the time and the place of work within the contractual and legal limitation of the employment relationship. Unlike teleworking, remote working rules do not determine how many days shall be rendered remotely and any arrangements are regulated under the individual agreement between the employer and the employee, to the extent allowed under the law. The parties are substantially free to agree on the days the employee may remotely work.

3 If employees voluntarily move away from their main work location, can employers unilaterally impose locally appropriate compensation packages?

When people talk about remote working, they may often imagine themselves on the beach of a Pacific Island typing on the keyboard and sipping a fresh-squeezed juice. After all, getting rid of the stress of commuting and working from idyllic places seem to be a great perk for many employees. Let’s say that such dream comes true, the employer might reasonably be tented to reduce the salary of the employee, assuming that his or her new work life would not warrant the same remuneration as previously. Theoretically, this might make sense. However, under the Italian labour law, should the employee and the employer agree that the employee may work remotely and, subsequently, the employee decides to move away, the employer may not unilaterally change the economic treatment of the employee. In general, the employer may not worsen the economic treatment contractually agreed with the employee. Such an amendment may be enforceable only through agreements between the employer and the employee that are executed by following specific procedures. Caution is required to safeguard the employee’s position and any decision that would worsen their treatment shall be taken under precise and definite conditions. In the past years of covid-19, many workers decided to leave big cities such as Milan or Rome to stay in their hometowns or in the countryside where the cost of living is much lower. However, this did not allow the companies to lower the salaries of the employees. In addition, the Italian rules on remote working provide that the employees who work remotely have the right to economic and regulatory treatment that cannot be worse than those applied to employees who perform the same duties on company premises only. In other words, the application of remote working by itself may not justify a reduction of salary even if the employee decided to relocate to a place where the cost of living is much lower. This, obviously, would not apply for indemnities or compensation granted in connection with how working activities are performed. For instance, if a worker who receives a cashier’s allowance starts to work remotely and stops doing cahiers-related duties, he or she would no longer be entitled to receive the cashier’s allowance.