Patrizio Bernardo
Willkie Farr & Gallagher Studio Legale, Milan
pbernardo@delfinowillkie.com

Introduction: the legislative framework in Italy

In 2017, well in advance of the advent of the Covid-19 pandemic, Italy adopted a specific provision on agile working, in Law No 81 of that year.

Under this legislation, agile working (or smart working or hybrid working – all these terms are used in Italy) is not a type of employment contract, but simply a different way in which to perform work, characterised by the absence of precise constraints in terms of working hours or workplace.

The law defines agile working as a ‘way of performing the employment relationship set by agreement between the parties, including forms of organisation by phases, cycles and goals and without the constraints of time or place of work, with the possible use of technological tools for the performance of the work’, in which the work ‘is performed, partly on company premises and partly outside without a fixed work station, within the limits of the maximum daily and weekly working hours, provided by law and collective bargaining’.

The mentioned agreement must include terms concerning:

• how the employment relationship is to be performed;
• how the employer may exercise its power of control on the activity carried out by the employee outside the company's premises; and
• necessary technical and organisational measures to ensure the employee’s disconnection from electronic working tools, if any, outside working hours.

It must be pointed out that the Italian government has implemented a number of emergency measures in response to the pandemic. In this regard, as an exception to the legislation described above, the employer may exercise its own discretion requiring each employee to work remotely for the duration of the state of emergency (so far, until 31 December 2021).

Many employers, therefore, have not yet had to enter into an agreement on agile working. In addition, corporate collective bargaining agreements and company policies in this regard are still, in many cases, at the final stage of elaboration.

This legislation also applies also to the public sector.

A great debate has arisen in Italy regarding agile working among those who have welcomed it as a tool to ensure a better work-life balance and increased productivity, and those who, instead, believe that remote working, especially in its most extreme forms where work is carried out almost exclusively from home, has negative effects both on employees’ concentration (and consequently on productivity levels) and on their health, since they may be at risk of burnout due to the uninterrupted connection (and control) facilitated by technology.

In this regard, the right to disconnect, which is discuss below, assumes a fundamental role in the protection of the worker.

Since there are number of proposals currently under discussion for reforming both private and public sectors, much news regarding agile working is expected in the coming weeks and by the end of the year.

In the private sector in particular, according to the current Minister for Employment, the role of collective bargaining will need to be enhanced at the legislative level as regards agile working, and better regulation will be required for health and safety at work and the protection of personal data.

The objective of public administration, as will be seen below, appears primarily to be that of bringing employees back to the workplace by favouring face-to-face working and leaving the hybrid model only for particular cases. Nevertheless, agile work will continue to be used and particular regulatory attention will be given, for example, to agile workers’ rights to disconnect and receive adequate training, and to workers who find themselves in particular need or difficulty and are not already protected by other regulatory institutions but could benefit from the agile working regime (see ‘Outline of Guidelines on agile work in the public administration’ dated October 2021).

The spread of agile work in Italy

According to research from the Smart Working Observatory, at the School of Management of Milan Polytechnic, during 2021 the number of smart workers decreased, but at the end of the pandemic it is expected to increase in relation to the current level. Estimates indicate that 4.38 million workers (+ eight per cent) will operate remotely at least in part, of whom 2.03 million are in large companies, 700,000 at small and medium enterprises (SMEs), 970,000 in micro-enterprises and 680,000 in public administration.

Smart working will continue at, or will be introduced, to 89 per cent of large companies, in which both structured and informal projects will increase, including in 62 per cent of public administration posts, and in 35 per cent of SMEs.

To date, structured or informal smart working projects are present in 81 per cent of large companies (compared to 65 per cent in 2019), in 53 per cent of SMEs (in 2019 this was 30 per cent) and in 67 per cent of public administration roles (as opposed to 23 per cent pre-Covid).

In particular, hybrid working models are growing, in which two days of workplace attendance alternate with three days of remote working, or vice versa.

Among the large companies that have defined, or are defining, a smart working project, 40 per cent say that the project had not evolved before the emergency and that the pandemic brought about the occasion to introduce it. This figure is 85 per cent in public administration.

It is true, however, that a recent provision of the President of the Council of Ministers has established that, as of 15 October 2021, the normal method of working in public administration is with personal presence.

According to the Italian Government, the reasons for this partial turnaround are the improving health situation under the pandemic and the need to guarantee maximum support to citizens and to companies’ productive operations. Public administration is, therefore, required to work at maximum capacity, something which is still believed achievable by working with personal presence, at least in this sector.

The right to disconnect

The fundamental right to disconnect was recently addressed by the European Parliament, which in its Resolution of 21 January 2021 containing recommendations to the Commission on the right to disconnect (2019/2181), primarily noted that, contrary to what is already happening in Italy, specific European Union legislation on the workers’ right to disconnect from digital tools used for work purposes, including information and communication technologies, does not exist at present.

According to the European Parliament, despite undoubtedly entailing many advantages, the digitisation of work has, however, made the boundaries between work and private life increasingly unclear; it has given birth to an ‘always online’ culture that can also affect workers’ physical and mental health, as well as their safety at work. The Parliament, therefore, decided to ask the Commission to include the right to disconnect in its new strategy on health and safety at work and to develop explicit new measures in this regard.

In particular, the proposal for a Directive sent to the Commission defines disconnect as: ‘not to engage in work-related activities or communications by means of digital tools, directly or indirectly, outside working time’.

As already mentioned, Italy already has such a specific legislative reference framework.

Regarding public administration, the right to disconnect is given particular attention in the ‘Guidelines on agile work in the public administration’, issued in October 2021, the principles of which must be implemented in the regulations of future national collective bargaining agreements governing the sector.

In fact, individual agreements governing agile work should include not only rest times and the technical and organisational measures necessary to ensure that workers disconnect from technological instruments but also, specifically, a precise time-slot for disconnection during which the workers are not required to perform any work-related duties.

It has been established that the right to disconnect must coincide with the consecutive daily rest period of not less than 11 hours for recovering psychophysical energy to which workers are personally entitled. This is a significant novelty. In this case, therefore, inclusion of the right to disconnect ensures compliance with the minimum daily and weekly rest times.

However, it remains true that the right to disconnect can be understood as inhibiting the employer’s contact with the worker through technological tools of work, not only during the minimum rest period, but also during other periods of the day that are not a part of working hours.

With regard to private sector work, by virtue of the law passed in May 2021, a worker who carries out work in the agile mode was recognised as having the right to disconnect from technological equipment and IT platforms, in compliance with any agreements signed by the parties and without prejudice to any agreed availability periods. Moreover, it has also been expressly stated that exercise of the right to disconnect, which is necessary to protect rest time and the worker’s health, cannot give way to negative repercussions on the employment relationship or on the worker’s remuneration.

Compared to Law No 81 of 22 May 2017, which, as we have seen, introduced agile working in Italy, and which required the agreement between the parties to specify the technical and organisational measures necessary to ensure the worker’s disconnection from the technological tools of work, the new law directly recognises the worker’s real right to disconnect from work devices, the exercise of which can only be governed by the provisions of the individual agreement.

In the light of these regulatory data, numerous companies have already included the right to disconnect and the specific methods for its exercise, or are considering adding them at the level of collective bargaining agreements or specific company policies. In this way, workers will have a clear picture of the daily time slots in which they may receive communications via electronic tools, whether or not they coincide with their rest periods.