Smart working is a way of carrying out the employment contract, aimed at creating a better organization to increase productivity and facilitate the reconciliation of life and work times. Smart work was introduced into the legal system with Law No 81/2017; this was done in accordance with the requirements of the European Parliament, which supports smart working as an approach to work organization based on a combination of flexibility, autonomy, collaboration and the use of tools that allow you to work remotely.
It therefore has a dual function:
1. Increase competitiveness in businesses;
2. Facilitate the reconciliation of life and work times by workers.
The basic idea is to give an employee the opportunity to work from home or elsewhere and to focus on their goals. It has been shown by special studies that a more satisfied employee, in whom the company shows confidence by allowing him to work from home, is also a worker who is more committed, more loyal to his employer and, therefore, more productive. However, this method is based on the principle of voluntariness: there is an agreement between the parties, for a term or for an indefinite period, stipulated in writing ad probationem (for the purposes of the test).
Work in smart mode can be characterized by forms of organization by phases, cycles or objectives, without precise time or place constraints and can be based on the use of technological tools, even owned by the workers themselves. In any case, the Law expressly establishes that the employer is responsible for the safety and proper functioning of the technological tools assigned to the worker. The Law also states that the service can be performed partly inside the company premises and partly outside without a fixed location, only within the limits of maximum duration of daily and weekly work, deriving from the Law or from collective bergaining. With regard to the aspect of remuneration, the agile worker has the right to an economic and regulatory treatment of no less than that applied overall to workers who perform the same duties exclusively within the company. In other words, it cannot give rise to a discriminatory economic and regulatory treatment with respect to those who carry out the activity according to standard or usual methods. Therefore, their protection is also envisaged in the event of accidents and occupational diseases, according to the methods illustrated by Inail in Circular No 48/2017.
Risks related to smart working
The introduction of smart working, however, has caused some problems, attributable to cultural prejudices linked to a presentialist conception of work and therefore still very skeptical of the full liberalization of times and places of work. Moreover, some risks that agile work brings with it cannot be overlooked. Not only the risks of isolation from the working community, but also of overworking and a gradual thinning of the distinction between work and private life times.
With respect to these problems, an attempt has been made to give an answer by prefiguring a new generation right: the right to disconnect. The employee's need not to be considered constantly available by the employer, outside working hours, was also brought to the attention. The right to disconnect means the employee's right to remain unavailable outside working hours; the purpose of this right is to place a barrier against the possible reduction or disappearance of the distinction between life and work times. Law 81/2017 specified that in the agreement by which this method is deduced, in addition to the worker's rest times, the technical and organizational measures necessary to ensure the disconnection of the employee from the working technological equipment must also be specified.
Smart working in the time of Covid-19
The smart working mode is applicable to both the private and public sectors in implementation of the principles set out in Art. 14, paragraph 1 of the Law No 124/2015. Looking at the public sector, the use of smart working has been the subject of recent anti-Coronavirus measures by the Government; in fact, to date, smart working is to be considered the ordinary way of carrying out work in public administrations. From 15 September 2020, as required by the Relaunch Decree, (legislative decree 34/2020 Art. 263, converted into Law No 77/2020) public employees who carry out tasks that cannot be performed are once again present in the workplace remotely. Smart working becomes a structural element in the organization of the PA, so much so that the decree eliminates the minimum percentage for teleworking by establishing that every year, by 31 January, the administrations draw up, after consulting the trade unions, an "Organizational plan of agile work" (abbreviated to "Pola" in the standard), which indicates the activities that can be carried out in this way, the organizational measures including technological requirements, personnel training courses and the tools for measuring and verifying results. This plan is aimed at extending the number of public sector workers who will be able to work from home by up to 60%. In case of non-adoption of the Pola, smart working is applied, however on request, to at least 30% of employees.
Smart working was envisaged, even without individual agreements, for employed parents with children under the age of 14 and until the end of the epidemiological emergency from Covid-19. For the latter, the Relaunch Decree provided for the validity until September 14th instead of October 15th, and the reason is clear: on September 14th there was, indeed, the reopening of the schools.
Until October 15th, the only workers who can "claim" to provide the smart working service will be the severely disabled or those who have a severely disabled person in their family unit, as well as those who, on the basis of an assessment by the competent doctor, are more exposed to risk of contagion, due to age or condition deriving from immunosuppression, from outcomes of oncological pathologies or from the performance of life-saving therapies or, in any case, from other ongoing diseases.
Naturally, the right to smart working can be asserted provided that this method is compatible with the characteristics of the work performance. In the long run, this could leave room for uncertainty with the consequent possibility of litigation. Also for this reason, it is good that smart working, once the emergency is over, returns as soon as possible to the ordinary rules provided for by Law 81/2017, based on the free agreement of the parties. But there is another reason to wish for a return to "ordinary" smart working. All the provisions that attribute a right or a priority in access to smart working, based on the personal condition of the worker, end up excessively accentuating the work-life balance aspect, obscuring the equally (if not more) important aspect of the tool organization which, if well managed, can revolutionize the way of working, shifting the focus from time to results. Not to mention that the too close link between smart working and personal (perhaps disadvantaged) condition risks creating situations of potential marginalization, which could backfire on those who would like to facilitate.
Translated by Veronica Giustiniani