The Court of Bologna, in its judgment No. 2759 of 23 April 2020, clarified the correct application and scope of Article 39 of Decree Law 17/2020 (so-called “Cura Italia Decree“), converted into Law 27/2020, stating that the disabled worker is entitled to carry out his/her job duties remotely (i.e. under the “remote working” regime).
In March last a female worker, in view of her disabled condition, asked to be placed asked to be able to work remotely for the duration of the coronavirus emergency. She attached medical documentation in support of her application, attesting to 60% disability. She also highlighted that she had a child affected by a disability within the meaning of Article 3.3 of Law 104/1992.
The employer company replied to the worker that she was currently in redundancy and that when work resumed, her application (duly received) to be placed in remote working regime would then be examined. However, when work resumed, other employees were allowed to work remotely, but not her.
This led to an emergency Labour Court application pursuant to Article 700 of the Italian Code of Civil Procedure which sought, on the one hand, to establish the illegality of the company’s decision and, on the other, to establish the right to work under the remote working regime.
A series of regulatory provisions enacted in recent months to tackle the emergency pandemic identified certain categories of workers who are entitled to work remotely or to be prioritised for remote working. More specifically, disabled workers are entitled to work remotely if they meet the conditions of Article 3.3 of Law 104/1992, or if they have a disabled person within the household who meets the conditions of Article 3.3 of Law 104/1992 and, on the other hand, private sector workers are entitled to be given priority if they are affected by serious and proven pathologies which reduce their capacity to work.
Based on these regulatory provisions, the Court of Bologna held that the applicant was entitled to work under a remote working regime in view of her “fragile” status, attributable to her own disability and also to the fact that she was caring for a daughter with a serious disability. These conditions, according to the court, are sufficient to justify the presumption of a prima facie case.
In relation, on the other hand, to the risk of imminent and irreparable detriment by reason of delay, the trial judge ruled that both the worker and her daughter are “seriously exposed to the risk of contagion, even a serious form thereof, and the health emergency is still underway. The risk is well-founded that if the applicant were to work in the normal way, leaving home to get to work, this could expose her – during the period preceding a ruling on the merits – to the risk of imminent and irreparable detriment to her health and that of her daughter living at home”.
On this basis, the Court of Bologna allowed the worker’s application and ordered the company to permit her to carry out her job duties under the remote working regime, acknowledging that remote working was compatible with the specific nature of her job duties, in view of the fact that the applicant had previously used the telephone and computer in the ordinary course of those duties.
The Court of Grosseto also ruled on the issue of remote working during COVID-19 by the order of 23 April 2020. According to the Court, the multiple emergency provisions enacted in order to prevent the pandemic’s spread considered it a priority to be able to access the remote working regime, governed in general terms by Law 81/2017.
Accordingly, if the employer is objectively able to offer a remote working regime to his employees, he is obliged not to require (disabled) employees to use their holiday leave, as occurred in this case. The requirement to use one’s holiday leave, according to the Court, “cannot be indiscriminate, unjustified or penalising, particularly where priority entitlements exist for reasons of health“.
Note, for the sake of completeness, that the increasing prominence of remote working in the context of the present pandemic was recently confirmed by the Italian “Relaunch” Decree. More specifically, this Decree entitled parents with children under 14 years of age to avail of the remote working regime provided that their job duties are compatible with such regime, until the end of the state of emergency and, in any case, no later than 31 December 2020. This is on condition that no other parent in the household is receiving income support due to suspension or termination of work, or that there is no non-working parent in the household.
Other related insights:
The emergency measures issued by the Government to manage the pandemic emergency of Covid-19 have attributed, to all intents and purposes, to remote-working also the function of a contagion containment measure and consequently a means to protect workers’ health.
Remote-working, in fact, is a way of carrying out work activities that, while allowing them to continue, allows, by substantially reduction of the number of people entering and visiting the workplace, to limit contact between people and consequently also the risks of contagion.
Although it is true that it is not possible to state that the worker has a right to remote-working, it is equally true that it is not possible to state that the employer has a mere faculty to activate smart-working at the time of the COVID19.
On this point, Court of Grosseto, through the decision of April 23, 2020, that we will examine later, stated that: “In this context, the use of remote-working, governed in general by Law No 81 of 22 May 2017, has been considered a priority. For obvious reasons, this modality of work cannot, and could not, be imposed in a general and indiscriminate manner; nevertheless, it has been repeatedly and strongly recommended and even considered as an ordinary way of performing the service in the Public Administration. (see art. 87, D.L. 18/2020). In addition, pursuant to art. 39, para. 2, of Legislative Decree no. 18/2020, “workers in the private sector, suffering from serious and proven pathologies with reduced working capacity, have priority in performing remote work pursuant to articles 18 to 23 of the law of 22 May 2017,”.
The case originates from an emergency action pursuant to Article 700 of the Italian Criminal Code filed by a worker who claimed the right to trigger remote-working.
Read the full version of the article in Italian language here.
Source: Il Quotidiano del Lavoro
It would be improper to say that, at least until the Covid-19 emergency period is over, the employer is free to decide whether or not to adopt an agile working mode for his employees. This can be seen from the DCPM of 11 March, which provides for maximum use by companies of agile working arrangements for activities that can be carried out at home or remotely.
Companies that did not want to activate Agile Work – or Remote Working, as many prefer to call it – in case of infection with the virus contracted in the performance of work in the company, may have to justify their decisions.
Until the emergency is underway, in fact, work in “Agile” mode will represent a real preventive measure that the employer must adopt to avoid exposing his staff to the contagion.
Read more here.
Here is the comment about Vittorio De Luca, published by Affari Italiani.
In terms of Remote Working and spread of the Covid-19 virus, Vittorio De Luca, of Studio De Luca & Partners comments: “We are in the middle of an emergency and many companies have suddenly been forced to seek and adopt alternatives to normal job performance. In other words, companies had to rethink and reorganise their work from one day to the next and re-evaluate so-called Remote Working. But what happens to all those companies that did not want or could not adopt this new approach to work? First of all, until this Covid-19 emergency is over, employers will not be completely free to decide whether or not to use to agile work. The Prime Ministerial Decree of 11 March calls for maximum use of agile working arrangements by companies for activities that can be carried out at home or remotely.
It is also necessary to bear in mind that employers have a precise obligation to protect the mental-physical health of workers based on article 2087 of the Italian Civil Code. Entrepreneurs are required to take measures in running the company which, according to the particular nature of the work, experience and technique, are necessary to protect the physical and moral integrity of workers. Therefore, employers must adopt all measures strictly imposed by law in relation to the specific type of activity carried out, general measures dictated by common prudence and all other measures that are actually necessary to protect workers according to the specific nature of the work, experience and technique. Employers who violate this obligation run the risk of being held liable for any contagion and its spread. Employers could therefore be called upon to compensate employees for any injury suffered and to answer for offences that give rise to the company’s administrative liability”.
From 14 June 2017, remote working has become officially operative, as “a way of implementing an employment relationship” carried out in part at the premises of the company and partly at a different location, without a fixed workplace, but within a maximum duration limit of the daily and weekly work hours established by law and the collective bargaining agreement. Such a way of implementing the employment relationship must be established by written agreement between the parties, also through organization by phases, cycles and objectives, with the possible use of technological means to carry out the work activity.
