Smart working between advantages and disadvantages. Who is guaranteed the right to disconnect? Limited to employees in agile mode
“Smart working” has become, in times of pandemic, a term known to all workers, even in Italy. We talk to the lawyer about it Nicola Ferraro, founder partner of de Tilla law firm (with offices in Milan, Rome and Naples), and founding member of Anai – National Association of Italian Lawyers.
Lawyer Ferraro, what dimension does the phenomenon of smart working have?
The results of the research conducted by the Smart Working Observatory of the School of Management of the Politecnico di Milano in a recent publication pointed out that in 2019 smart working concerned about 570,000 workers. In time of the Covid-19 pandemic, the number of workers who carried out their business remotely jumped to 6.58 million, about 1/3 of employees. It is estimated that around 5.3 million agile workers will be at the end of the pandemic.
On the one hand, the use of modern connection technologies has allowed, in many working environments, the continuation of activities “remotely”. The presence of smartphones, tablets, PCs (often supplied by the companies themselves) made communications continuous and imposed instant response times to the questions and issues raised by the employer (be it private or public manager). On the other hand, however, it raised serious questions about the right to disconnect. That is the right that the worker, who is not an entrepreneur, has not to be available outside normal working hours. It includes not only the right to “disconnect” once outside working hours but also the right not to be “recalled” where this happens or rewarded for having behaved differently (unlike colleagues).
Is disconnection a right recognized by Italian law?
The restrictions caused by the spread of the Coronavirus have made digitization and the use of technology capillary. This has prompted many companies to adopt smart working models and to increase their flexibility on working methods. At the same time, the culture of continuous availability has become established, accentuating the problems connected to it and placing the need to protect the worker in an even more topical way in the face of the risks of abuse, inequity and psycho-social problems that constant connection brings with self.
The issue is deeply felt, especially now in time of a Covid pandemic. But the Italian legislator moved in time, albeit partially. Already with the Law n. 81/2017, the employee’s right to disconnect from technological work equipment was recognized.
The aforementioned law emphasized:
• on organizational flexibility,
• on the voluntary nature of the parties signing the individual agreement,
• on the use of instruments that allow you to work remotely
• the right to disconnect.
What are the key points of the labor legislation?
Sometimes both employers and workers neglect compliance with labor regulations regarding the maximum working hours and the minimum rest time to be guaranteed. Briefly, this legislation provides:
• 48 working hours maximum, per week;
• 11 consecutive hours of minimum rest per day;
• Minimum 4 weeks of paid vacation per year.
Is the right to disconnect recognized to all employees?
If the intention of the legislator was to protect the worker against the risks deriving from constant availability with the company and continuous control of his employer, it should be specified that the right to disconnect has been limited only to employees who have had access to the agile work regime.
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