Published on «International Employment Lawyer» May 20th, 2021 – Sharon Reilly

Being tech-savvy is no longer just a nice-to-have skill, but increasingly an essential one for any job, regardless of sector, in order to meet ever-changing business needs and organisational models.
Digitalisation is all around us, transforming how customers and companies engage and interact and creating new (digital) revenue streams. All of this has a knock-on effect on the traditional employment relationship, particularly in a country like Italy, where employers have to navigate a very employee-friendly legal environment.
The covid-19 pandemic and the ensuing lockdown have provided a stress test for the collective workforce on how good their organisational and tech skills are. The widespread use in the last year of remote working has forced us to hone, and in some cases learn from scratch, the skills needed to perform our jobs remotely, using platforms previously unheard of and vocabulary usually reserved for the techies.

In Italy, pre-2020, only 5% of Italians were on so-called “smart working”, which had struggled to catch on partially because of the ingrained historical and cultural approach that work was measured by hours worked and not by results, encouraged by highly protective employment laws. This was all swept away in the blink of an eye when smart working became the norm.
A whopping 47% of workers were working remotely at the height of the pandemic and it was plain for all to see that it was a viable way of working, bring many tangible benefits to employees, such as improved work-life balance, reduce time and cost of commuting, increased motivation and job satisfaction. Advantages for employers include higher productivity, less absenteeism and saving on office space.
However, just as digitalisation has its upsides, there is a downside: the blurring of boundaries between work life and home life; the feeling of almost always being connected and not being able to switch off that work phone or laptop in the next room. This is a state that, if prolonged over time, can seriously jeopardise people’s health and erode the quality of their private lives.

This growing phenomenon was addressed by the European Parliament Resolution of 21 January 2021 with recommendations to the European Commission on the right to disconnect inviting the Commission to submit a proposal for a directive guaranteeing employees the right to disconnect given that “…whereas there is currently no specific Union law on the worker’s right to disconnect from digital tools, including information and communication technology (ICT), for work purposes” (Article A).
Thus, in acknowledging that to date there has been no specific EU legislation on the right of workers to disconnect, the resolution goes on to say that “whereas the ever greater use of digital tools for work purposes has resulted in an ‘ever-connected’, ‘always on’, or ‘constantly on-call’ culture, which can have detrimental effect on workers’ fundamental rights and fair working conditions, including fair remuneration, the limitation of working time and work-life balance, physical and mental health and safety at work and wellbeing, as well as, because of its disproportionate impact on workers with caring responsibilities, who tend to be women, equality between men and women; whereas the digital transition should be guided by respect for human rights and for the fundamental rights and values of the Union, and should have a positive impact on workers and working conditions” (Article C).
The proposed directive would oblige member states to establish, after consultation with their social partners, detailed arrangements to enable employees to exercise their right to disconnect, including practical ways to disconnect from digital tools and, to give the directive teeth, provide sanctions in the event of a breach.

Turning to the Italian legal system, only as recently as 2017 did we see a reference to “disconnection” in Law n. 81/2017 which embodies the rules on smart working. However, the term is not expressly defined, nor articulated by the legislation, as an actual right of the employee.
However, in May 2021, in among further emergency regulations passed to ease the effects of the pandemic, the Italian legislator introduced the right of employees working remotely to disconnect from the IT tools used to carry out their work. (Law 6 May 2021, n. 61, Article 2(1-ter).
So here we have it: an express right to disconnect, the exercise of which is not subject to any limitations other than those contained in the individual agreement between the parties. This, in practice, could mean that, aside from any on-call hours envisaged by the agreement, a worker is not obliged to remain connected to the company’s tools and systems, such as answer phone calls, emails, etc.
The new regulation also provides that “the exercise of the right to disconnect, which is necessary in order to protect the worker’s rest time and health, cannot have repercussions on the employment relationship or on remuneration”.
In taking a leaf out of the EU Parliament’s (resolution) book, this new provision is certainly a step in the right direction, although not as far-reaching as hoped for. In fact, the Italian lawmakers only recognise the right to disconnect for employees on the “smart working” model and have failed to put in place any sanctions for non-compliance.
It also throws light on a more subtle, but important distinction, between different models of working. As things stand, an employee on “smart working”, so generally a hybrid model, alternating between working in the office and working remotely (could be at home – but not necessarily – at the local coffee shop, or even at a holiday home by the sea) enjoys the right to disconnect, whereas a co-worker on a teleworking contract, which means he is permanently based at home, is more exposed to the risk of hyper-connection, but has no recourse.
Here’s hoping that the new EU rules on the subject will give the existing Italian provisions some teeth.