It is time to forget work as we knew it.
Technology is opening new interesting scenarios which may revolution the companies' organization. Nowadays employees can access their company network from anywhere through their computers and work on files stored in cloud databases. Meetings are progressively replaced by conference calls or video calls, to save time and money, and focus is drifting from working hours to results.
To adapt to this new reality, on 14th June 2017, the Italian legislator has finally regulated smart working in Italy.
Smart working is actually not new to some Italian companies, usually modern multinationals such as Microsoft, Vodafone and Enel, that had already introduced it through company collective bargaining agreements signed with the trade unions. These experiments have usually given very positive results in terms of satisfaction both of the companies and of the employees. A higher productivity has been registered but, on the other hand, the lack of a legal framework prevented smart working from developing significantly throughout the country.
The new legislation finally defines, once and for all, smart working and sets out the rules that have to be followed to implement it.
It is made clear that smart working is a way of working and not a new kind of employment contract. Through smart working, employees are given the opportunity to work partly at the company and partly outside its premises, with no set working hours or place of work, provided that limitations to daily and weekly working hours are complied with.
It is essential that the parties enter into an individual agreement – which is not the employment contract but may be included in it – specifying the way the employment relationship is performed, the employee's rest periods, the necessary technical and organizational measures to ensure that employees disconnect from electric work tolls and information about what kind of conduct may lead to disciplinary sanctions.
This agreement can be either fixed-term or open-ended, provided that each party can unilaterally withdraw giving notice.
Employers must also have an internal policy regulating the use and custody of electronic equipment and the safeguard measures to protect them from damage and theft. The policy should cover how loss of the employers' confidential information can be avoided.
With regard to health and safety at work, employers already have a general obligation to inform the employees of all risks associated with the work they perform. With reference in particular to smart working, the new piece of legislation provides that smart workers should be insured against accidents and illnesses arising from the fact that the activity is carried out outside the company premises. Companies must also grant the employees insurance coverage against accidents occurred while going to or coming back from work, provided that the choice of workplace by the employee is reasonable.
However, the law also clarifies that the employees, on their side, must cooperate in implementing the health and safety measures put in place by employers to limit the risks that may arise outside the company premises.
Smart working is obviously based on a trust relationship between companies and employees. Companies do in fact rely on employees to still carry out their work activity, although they cannot see them.
That said, companies are not completely lacking of means to verify the employees' activity. In fact, since the end of 2015 rules on monitoring of employees were significantly amended and it is now possible for employers to use the information collected through work tools (company personal computers, mobile phones etc.) for disciplinary purposes. This, provided that there is a policy in place, drafted in accordance to the law and to data protection rules, that fully informs employees of the companies' powers.
The benefits deriving from smart working are many, for all stakeholders.
Companies, first of all, can save money spent on meal vouchers and leaves. They can move to smaller offices, reducing fixed costs deriving from rent, gas and electricity. The concept of workplaces may also be rethought. They will no longer be only a place where each employee has an assigned desk. Offices should now become the place where employees have the opportunity to meet in person and interact with their colleagues, so smaller offices, made of open spaces with no designated desk and employees coming and going depending on where they are working from that day, may be the future.
Moreover, it is believed that society as a whole will benefit from smart working. The reduction of the number of employees travelling to work everyday may in fact reduce traffic jams and pollution, thus contributing to a better environment.
But smart working is especially an opportunity for employees to find a better work life balance.
Employees are in fact granted more flexibility in working hours, which can be adapted to their personal needs. Also, time spent commuting could be instead invested in their personal life, thus diminishing stress and, in the end, making the employees more productive and increasing companies competitiveness, as showed by research.
Female employees in particular might find in smart working an answer to the never-ending issue of how to take care of their children without sacrificing their careers.
Until now women have often been put in front the hard choice between family and career. All mothers probably lived the experience of having to decide whether to go on parental leave, to stay longer with a new born child, or return as soon as possible to work, to show dedication; or of having to choose whether to stay at home when their child is sick or call a babysitter.
These choices have often undermined the possibility for women to compete with men when it comes to promotions, regardless of their skills.
Smart working should be a means for women to finally be able to play their important role within the family, without suffering any consequences or giving up their work ambitions. It is in fact made clear by the law that smart workers have a right to an economic and legal treatment which cannot be below the one generally applied to other employees carrying out similar duties but always work at the company premises.
Also, it may actually be time that both parents share the responsibility of taking care of their children when they are young and this is made easier through smart working considering that the parents may take turns to work from home.
So smart working may be a positive answer to a widespread need for flexibility. But, as often happens, the new piece of legislation, on one hand has not gone as far as it could, showing the difficulty the legislator faces in amending employment law, on the other it raises some doubts and issues that will need clarification.
Among the hot topics, there certainly is health and safety. It is not clear how employers can foresee and prevent all risks that employees could encounter when working outside the company, provided that employees can choose where to work from. This is a particularly delicate issue, considering that employers are liable for damages suffered by employees as a consequence of the breach of their health and safety obligations.
Another issue that has to be solved is how to comply with the obligation to ensure that the employees disconnect from electronic tools. It is likely that smart workers will have a company phone and computer through which they will be able to work, at any time, if they wish, regardless of the instructions received by the company. How to prevent this from happening?
The answer to many of the issues above probably lies in the policies that have to be put in place by employers. A strong policy may be the means to prove that employers have done everything that was in their power to comply with the law and that, therefore, the consequences of any violation of the policies lies on the employees.
While bearing in mind the above complications, smart working should still be seen as an opportunity to increase companies' performance while supporting the employee's work-life balance and, why not, an interesting challenge for the lawyers assisting them.