The Court of Trieste, Employment Section, with order of 21 December 2023, no. 525/2023 has held that so-called “vulnerable” workers’ rights to work remotely cannot be “absolute” but must be balanced with the company’s organisational and production needs as envisaged by the employer.
In the present case, a “vulnerable” employee worked remotely five days a week, under an individual fixed-term agreement. At the end of the agreed term, the employer informed the employee that, due to changed business and organisational needs, she would have to work for three days a week in person and, for the remaining two days, remotely.
In the face of this, the worker complained about the incompatibility of her state of health with in-person work, arguing the the tasks assigned to her were absolutely compatible with remote working – also taking into account that in the last three years she had carried them out entirely remotely – and highlighting the unlawfulness of the employer’s conduct for breach of Article 2087 of the Italian Civil Code.
The employer challenged the application and claimed that it was unfounded for alleged breach of the company’s freedom of organisation, protected by Article 41 of the Italian Constitution. The employer justified the refusal to allow the employee to work entirely remotely on the basis of proven organisational reasons and reiterated the need for her presence in the workplace for at least three days a week.
The Court highlighted that the right to remote working granted to “vulnerable” workers (see Article 90, paragraph 1, of Italian Decree-Law no. 34/2020) is not an absolute right but a right expressly subordinated to the compatibility of the worker’s tasks being carried out remotely.
The Court also acknowledged that the ways in which the employer exercised its power to organise the company appeared real and appropriate and that the possibility of working remotely, albeit partially, was never denied but rather partially granted following a balancing and re-evaluation of the parties’ mutual needs.
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In conclusion, it can be said that the assessment of the compatibility of remote working by vulnerable workers must be carried out on the basis of the organisational and production needs of the concerned organisation, involving, where necessary, an inevitable need to alternate between days in which the worker must work in-person and days when he/she can work remotely. This reading, among others, is consistent with the provisions of Article 18 of Italian Law no. 81/2017 which, in defining remote working, provides for that work should be provided “partly inside company premises and partly outside”.
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On 4 May 2023, Italian Decree Law No 48/2023 (the ‘Employment Decree’ (‘Decreto Lavoro’)) containing ‘Urgent measures for social inclusion and access to the workplace’ was published in the Italian Official Gazette.
The Decree introduced important initiatives on employment law, social security and social assistance, with effect from 5 May 2023.
One of the main initiatives in the employment law field are changes to the permitted reasons for fixed-term employment contracts, with a strengthening of the role of collective bargaining.
The permitted reasons justifying a fixed-term contract of between 12 and 24 months, the extension for more than 12 months, or the renewal of a fixed-term contract are exclusively those provided for by the collective agreements concluded by the associations comparatively more representative at national level, or in the absence of such provisions and until 30 April 2024, the individual parties, for technical, organisational and production needs.
The Decree also simplifies the employer’s information obligations introduced by the ‘Transparency Decree’.
In contrast to the past, some of the information that the employer was required to provide in the employment contract or in a specific information notice can now be provided to employees simply by referring to the relevant legislation or collective bargaining agreement, which may also be the company’s bargaining agreement, applied to the employment relationship. This information relates to, for example, probationary period duration, training, paid holidays and leave, notice of dismissal and resignation, salary components, working hours, overtime, social security and insurance institutions.
To simplify the obligation, and to ensure uniformity in the employer’s communications, the employer will be required to deliver or make available to staff, including through publication on the website, national, regional and company collective bargaining agreements, as well as any company regulations applicable to the employment relationship.
The employer’s information obligations on the use of automated decision-making and monitoring systems have also been reduced, thus further simplifying these information obligations.
Further measures introduced by the Decree concern:
The Decree also provided a series of measures relating to social security and assistance, aimed above all at supporting youth employment, promoting the permanent integration into the labour market of beneficiaries of the Inclusion Allowance and reducing the ‘tax wedge’ (cuneo fiscale).
Other related insights:
Transparency Decree: new obligations for the employer
As is well known, on 23 February 2023 the European Commission requested its employees and collaborators to uninstall the TikTok social network application from their business and personal electronic devices. This request was accompanied by the notice that, for those who had not uninstalled the social network by 15 March, it would no longer be possible to access other company applications such as the e-mail box or Skype services.
The decision taken by the European entity derives from a need to protect the data and information of those who work for it as well as from the need to increase IT security.
Could a private sector employer in Italy take the same decision?
In an attempt to provide an answer to this complex question, it is first of all necessary to distinguish between business and personal devices. If electronic tools, including mobile phones, are provided by the employer they are company equipment and, as such, the employer has the ability to implement a certain level of ‘control’ over them.
In fact, through the identification and adoption of internal policies defining rules for the correct use of the work tools with which its employees are equipped, the employer may introduce rules to prevent the improper use of the assigned tool and prohibit its use for personal purposes rather than prohibiting the installation of applications not connected to work activities on the device.
In the event of assignment of company tools, it is therefore highly recommended to implement internal policies and regulations that govern their correct use by assignees. In fact these aspects have across-the-board consequences related to the management of the employment relationship. Just think, for example, of topics relating to (i) employment law which also include aspects relating to disciplinary sanctions that can be adopted in the event of a breach of company rules as well as the correct exercise of control powers by the employer, (ii) the protection of personal data, both of the employees themselves and of the data they process due to their duties as well as (iii) health and safety and the risks to which the employees who use them could be exposed.
However, different conclusions can be reached on the subject of personal devices. Since these are, in fact, the employee’s own tools, the employer can limit, or even possibly exclude, the use of personal mobile phones during the workday without, however, entering into the merits of what can or cannot be installed on them.
Lastly, the use of electronic instruments, whether personal or business, exposes corporate assets to the risk of accidental loss, theft and dissemination. Therefore, employers must take care to adopt all appropriate measures to ensure sufficiently high levels of safety in full compliance with all applicable regulations in such circumstances.
On the basis of the considerations set out above, which in any case merit further investigation, it does not appear possible for an Italian employer to intervene directly on the personal electronic devices of its employees in the same way as the European Commission. However, defining, adopting and updating policies over time that regulate the use of work tools or the use of personal devices – during, for example, rest times during the working day – appears to be a fundamental measure that companies should consider in the broader definition of the strategic plan for the protection of both corporate assets and the parties that make up the reference organisation.
By judgement no. 15644 of 23 November 2022, the Administrative Court of Lazio clarified, among other things, that the employer is the only person entitled to install audiovisual systems that may enable remote control of the workers’ activity. The case originated from the request of a company providing transport services for others, which, according to the contract stipulated, should have installed video recording systems on its vehicles and make the images available to the client. Systems so devised, the decision states, would have been controlled by persons other than the employer, in contrast with the provisions of the applicable legislation. The Court notes that the reasons that justify the installation of the tools required to achieve such purposes, as indicated by Art. 4 of Law no. 300/1970 (the “Workers’ Charter”), i.e., (i) the protection of the company’s assets, (ii) the purpose of security and safety of personnel and (iii) the proper compliance with organisational and production needs, the Court notes, can only be referred to the employer.
With the press release of 28 November, the Italian Ministry of Labour and Social Policy publicised the ministerial decree of 20 October 2022 which defines the criteria and procedures for granting the tax exemption for private employers who obtain the certification of gender equality introduced into our legal system by Italian Law No 162/2021.
This is a voluntary certification that the most compliant companies can apply for and obtaining it brings with it a series of concessions, including: tax relief up to 1% and a maximum of EUR 50,000.00/year for each company; advantageous criteria in tenders; possibility of obtaining a bonus score in the assessments by authorities holding national and regional European funds, of project proposals for the granting of state aid to co-finance the investment undertaken.
To obtain the tax exemption, the decree establishes that certified companies will be able to submit, by electronic means only, the application for exemption from the National Social Security Entity (Istituto Nazionale della Previdenza Sociale, ‘INPS’), according to the instructions to be provided by INPS.
This application must include certain information including: (i) the company’s identification data, (ii) the average monthly salary and the estimated average rate relating to the equality certification’s period of validity, (iii) the sworn self-declaration, issued under Italian Presidential Decree No 445/2000, with which the company declares that it holds the gender equality certification, and (iv) the certification’s period of validity.
INPS will assess the applications on the basis of the information in its possession (and that transmitted by the Department for Equal Opportunities of the Presidency of the Council) and will grant the company the exemption for the certification’s entire period of validity.
The exemption, calculated on a monthly basis, will be used by employers through a reduction in their social security contributions for all the months of the certification’s validity, provided that the certification is not revoked and no measures are taken to suspend the social security benefits adopted by the National Labour Inspectorate (Ispettorato nazionale del lavoro).
Altri insight correlati:
Gender equality: parameters for obtaining certification have been defined
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