Within the scope of urgent preliminary ruling procedures, the Court of Mantua, with order No. 1054 of 26 June 2020, ruled for the very first time on the necessary conditions to be met in order for a parent having a child younger than 14 years old to be entitled to remote working pursuant to article 90 of Law by Decree No. 34/2020 (the so-called ”Relaunch Decree”).
Facts of the case
A worker, employee of a parking company, brought a claim under section 700 of the Code of Civil Procedure, requesting the Judge to order its own employer to allow him to carry out his own services on a remote working basis, to be able to look after his daughter younger than 14 years old and in order to avoid any harm to his own health.
In appearing before the court, the employer inferred the incompatibility of the duties assigned to the claimant (visits to car parks to meet the relevant technical managers; support to the health and safety management within the company as the Workers’ Representative for Safety or RLS; inspections aimed at enhancing and protecting company assets) with a remote working arrangement, in light of the fact that the carrying out of some activities assigned to the employee necessarily had to be carried out on site.
The Court’s decision
In rejecting the claim brought by the employee, the Court of Mantua preliminarily found that article 90 of the so-called Relaunch Decree does not acknowledge an absolute right to render one’s services on a remote working arrangement to parents with children younger than 14 years old.
Indeed, the rule foresees that the necessary condition to be met in order to be able to avail oneself of the right to carry out the respective own working activity on a remote working basis is the compatibility of any such arrangement with the typical features of the duties entrusted to the employee.
Well then, in the Judge’s opinion, such necessary condition could not be deemed to be met in the case in point under dispute, since it had emerged that the duties assigned to the claimant involved, “at least to a significant yet not prevailing extent, the need for the employee to be physically present”.
Furthermore, throughout the legal proceedings it emerged that the claimant’s wife worked regularly on a remote working arrangement at her own residence, where she lived with the daughter and with the husband
Such circumstance – even if in itself did not prevent vesting the right to remote working in the claimant – has been held by the Judge as to show the lack of any imminent and irreparable danger for the under-age daughter.
Furthermore, with the commented decision, the Court has upheld the principle pursuant to which in no way can the periculum in mora be deemed to arise in re ipsa but, however, it must be based on specific elements.
There is thus a need to raise precise productions allowing the parties to the legal proceedings and the Judge to make a check aimed at protecting a specifically, yet not theoretically, irremediable harm.
The claimant failed to abide by the above-mentioned burden of production.
Based on any such necessary conditions, concerning the fumus boni iuris and the periculum in mora, the Court of Mantua thus rejected the employee’s claim, by upholding the fairness of the employer’s behaviour.
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The rejection decision of the Court of Mantua proves to fully abide by the provisions under article 90 of Law by Decree No. 34/2020 pursuant to which “until the cessation of the state of epidemiological emergency caused COVID-19, working parents employed within the private sector having at least one child younger than 14 years old, provided that there is not another parent within the family unit benefitting from the income support measures in case of suspension or discontinuance of work, or that there is not a non-working parent, shall be entitled to work on a remote working arrangement even lacking any individual agreements to said extent […] and provided that any such arrangement is compatible with the characteristics of the work done”.
The foregoing entails that, as correctly ruled by the Judge,until the emergency lasts, workers may claim the right to fulfil their own duties on a remote working arrangement, unless the objective impossibility to fulfil those duties remotely is proven.
Therefore, it is the case of a quaestio facti to be assessed on a case per case basis.
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