Smart Working: Does Legislation Contradict Itself?

An innovative and increasingly desired tool, smart working allows companies to save money and allows employees to meet a better work-life balance. However, the path to an agile conception of work seems far from plain, because the legislation is not always completely clear.

 

What is ‘smart working’?

Smart working is a mode of execution of dependent employment relationships characterized by the absence of hourly or spatial constraints and by an organisation by phases, cycles, and objectives, established by agreement between employee and employer. It is a notion that helps employees’ work-life balance and, at the same time, helps their efficiency grow.

The definition of smart working, laid down in Law no. 81/2017, focuses on organisational flexibility, the will of the parties who sign the individual agreement, and the use of equipment that allows for working remotely (via laptops, tablets, and smartphones).

Who benefits from smart working in their company?

Smart working is a typical “win-win” tool, since it brings benefits both to workers (acting positively on their work-life balance, helping to solve personal or family organisational problems and saving in terms of transport, gasoline, etc.), and to companies (increasing the productivity of workers through an increase in their corporate welfare and reducing the requests for time off), and even to the environment, if we consider the harmful emissions saved from the reduction of transport to work.

Being assisted by a legal adviser is often indispensable: the law has, in some ways, limited the opportunities that smart working intrinsically offered and in other ways, has left some unclear areas.

Smart working, therefore, tries to leave behind the ancient idea of employees being obliged to spend at least eight hours of their day within the walls of the company, and, instead, allows the employer and their employees to reconcile their interests, with a view of improving the competitiveness of the former and to make the work commitment of the latter less burdensome.

This explains why smart working is increasingly developing, taking various and often innovative forms and why companies are increasingly asking their consultants to assist them in the development of articulate, complex and sometimes innovative individual and collective agreements for the introduction of this modality.

Being assisted by a legal adviser is often indispensable: the law has, in some ways, limited the opportunities that smart working intrinsically offered and in other ways, has left some unclear areas.

Working time in smart working

One of the unclear areas mentioned above lies in the boundaries of compatibility between smart working and working time discipline.

Even before examining the employer’s obligations, it may be useful to observe that there are some contradictions in the provisions of the said law in regards to working time, since the phase of its definition. In the same first paragraph of Article 18 of Law No 81/2017, in fact, the law provides that the employee is not subject to “precise time constraints”, but at the same time clarifies punctually that the work performed must still be contained “only within the maximum duration of the daily and weekly working time, resulting from the law and collective bargaining”.

Thus, while Article 18(1) introduces flexible rules on performance, even allowing the parties to agree on the organisation of work in phases, cycles and objectives, it also reiterates the strict principle of maximum daily and weekly working time.

This is certainly not to say that “agile work” should have been completely unrelated to any reasonable time limit; of course, we are well aware of the risk that a total time limit free form of work can circumvent the rules set out to protect the employee. However, it should be pointed out that the freedom of the parties to organise work by phases, cycles and objectives should have allowed the employer and the employee to overcome, at least, the anachronistic mindset of calculating the maximum daily and weekly working hours, which can’t be applied to intellectual work. Moreover, it would certainly not have been the first time that such a derogation had been introduced, given that Article 17(5) of Legislative Decree No 66/2003 – almost fifteen years ago – had already provided for the exclusion of the rules on minimum daily rest for “services rendered in the context of home work and working remotely”, i.e., the “ancestors” of smart working.

The challenge for legal consultants will be to persuade the courts to admit even for smart workers the most general derogations on working time provided for in the aforementioned art. 17, par. 5 of Legislative Decree no. 66/2003, if the activity to be performed grants the employee a significant faculty of self-organisation and the service itself is to be rendered through computer tools.

What should a company do to introduce smart working?

A company intending to introduce smart working should start first from an accurate analysis of its organisation, the objectives it intends to pursue, the possibilities of interaction with trade unions, and the needs expressed by its employees.

In particular, then, the legislator has provided – for the purposes of the introduction of the instrument – the stipulation of a written agreement, particularly detailed, relating to the modality of agile work. It shall include clear details about:

• the forms of exercise of managerial power and control by the employer;
• the regulation of the execution of work outside company premises;
• the tools used by the worker;
• the technical and organisational measures necessary to ensure the employee to be disconnected from technological work equipment;
• conduct connected with the performance of work outside company premises, which gives rise to the application of disciplinary sanctions.

What makes the employer’s obligations more cumbersome is not so much the form of the agreement as to its content. In fact, requiring the agreement to identify the forms of exercise of managerial power and the power of control outside company premises makes it inevitable to suggest to the employer to consult a professional in the sector, to avoid incurring dangerous errors in the drafting of contractual clauses and the consequent possible disputes.

In short, even at the time of its genesis, the drafting of an agile employment contract is anything but “agile”.

With regard to the regulation of the employer’s control powers, it will be interesting to verify how jurisprudence will coordinate its guidelines on the legitimacy of controls on certain conduct of the employee unrelated to the performance of his/her work, where an agreement on “agile work” should lack an explicit discipline on the control powers of the employer. It is not possible to exclude disputes about the legitimacy of investigations carried out by the employer through an investigative agency (for example, during an employee’s absence due to illness or for the enjoyment of permits with specific purposes, such as those for assistance to the disabled), in the absence of a specific agreement on control methods, to be included in the smart working agreement.

Likewise, the agreement relating to the conduct of the agile worker to be considered illegitimate and such as to determine the application of disciplinary sanctions could be a source of great concern to the employer, where either the list of employee conduct is poorly laid down or any potential smart worker’s conducts relevant at disciplinary level are not governed by appropriate clauses.

The current regulation of this instrument by the law substantially forces an employer, hence, to turn to a professional during the phase of the drafting of the smart working agreement, in order to avoid any errors that may negatively affect the powers of management and control of the employer. In short, even at the time of its genesis, the drafting of an agile employment contract is anything but “agile”.

Another unclear area in the discipline of “agile work” is the one relating to safety at work and possible accidents and occupational diseases of the smart worker.

On another note, in relation to the aspect of “disconnection”, it should be pointed out that, for the first time, the legislator focused on the need to guarantee the employee the possibility of a temporal suspension from his/her availability at a distance through modern technological instruments. The legislator, thus, demonstrated a shared sensitivity to the negative consequences of prolonged use of modern technological tools.

Finally, it may be useful to add that the agreement on “agile work” can be stipulated for a term or indefinite period, in the latter case the parties can terminate the agreement with a notice of not less than thirty days. However, Article 19(2) of Law No 81/2017 allows both contracting parties, in the presence of a justified objective reason, to withdraw before the expiry of the period or without notice in the case of an agreement for an indefinite period. In this case, however, attention should be paid to any collective bargaining disciplines that are more favourable, which could, for example, include the need for the worker’s consent for reversibility from agile work (or working from remote) to ordinary work.

Safety at work and smart worker accidents

Another unclear area in the discipline of “agile work” is the one relating to safety at work and possible accidents and occupational diseases of the smart worker.

The issue of occupational accidents and diseases also raises some doubt as to the possible consequences of the practice of “smart working”.

With regard to the issue of safety at work, Article 22 of Law no. 81/2017 requires the employer to provide the employee and the workers’ safety representative, at least once a year, with written information identifying the general risks and the specific risks connected with the particular mode of execution of the employment relationship.

Such forecast, which is clearly in the interest of the worker, raises some doubts inasmuch as, with particular reference to small-medium-sized companies, it obliges the employer to bear additional costs.

Therefore, it cannot be excluded that by such a provision, as well as the provision relating to the articulated written agreement to be stipulated between the parties, the legislator may have unconsciously discouraged the use of this instrument, especially in the sector of small and medium enterprises, which could consider “agile work” choice an uneconomic one.

The issue of occupational accidents and diseases also raises some doubt as to the possible consequences of the practice of “smart working”.

First of all, it should be made clear that Article 23 of Law No 81/2017 – in order to obviate the risk that employers might be discouraged from using “agile work” for fear of substantial compensation to be paid for possible accidents – extended INAIL’s mandatory general insurance is needed to cover accidents outside company structures. The other side of the coin of this provision is, obviously, an increase in insurance costs to be borne by the employer.

To try to limit the said higher insurance costs, however, Article 23 of Law No. 81/2017 itself has established that workers are entitled to protection against accidents at work occurring outside company premises only if specific conditions are met:

• if the accident occurred during the normal journey from/to the place of residence of the employee to/from the place chosen for his/her work performance outside company premises;
• when the choice of the place for work performance is dictated by needs related to the performance itself or by the need of the employee to reconcile work/life balance meets reasonable criteria;
• where the accident occurred using a private vehicle, only if the place of destination could not be reached by other public means.

Sometime after the enactment of the law, by circular no. 48 of 2^nd November 2017, INAIL provided some operational instructions on the insurance protection of the employee in smart working mode, but without giving useful answers. In fact, the Social Security Insurance Institute had simply suggested using individual agreements to reduce risks, stating that, in the absence of specific indications in individual agreements, in order for an employee to be compensated for the accident occurred, whether the activity carried out by the employee at the time of the accident could be defined as closely related to the work would have to be ascertained, despite being carried out outside the premises of the company.

To summarise

In conclusion, we can say that the express recognition by Italian legislation to create a useful tool to make the work more flexible was certainly an important step towards a concept of modern work in line with the already occurred digital revolution.

However, notwithstanding the commendable initiative taken, apparently, the legislator has overregulated this area, that perhaps did not need it, and left some ambiguities in the regulation, so as to potentially discourage the use of this instrument, especially by small businesses.

 

Luca Daffra and Serigo Passerini

Via Lorenzo Mascheroni, 31 20145 Milano

Tel. +39 02 4819 3249

e mail: luca.daffra@ichinobrugnatelli.it

sergio.passerini@ichinobrugnatelli.it

https://ichinobrugnatelli.it

Ichino Brugnatelli e Associati is widely recognised as a leading specialist employment law firm. We have also strong experience in high-stakes litigation and complex transactions, for both domestic and international clients.