Andersen European Guide to Support Employers: remote work
The new edition of our European Guide to Support Employers, issued by the European Employment and Labour Andersen department, is devoted to remote work in Europe, a trend rapidly growing trend in the European job market.
Although the concept goes back more than 50 years, and in some European countries the issue was first regulated by law over 20 years ago, it has become far more widespread since the pandemic. Currently, the majority of employers realize that, sooner or later, remote, tele- or hybrid- work will unavoidably need to be implemented as a permanent solution rather than as an ad-hoc method of work in emergency situations (or whenever office work proves impossible).
The question of how effective remote work is going to be in an organization should be answered primarily through the prism of its culture, but the legislation of each country also needs to be considered.
During the pandemic, several employers decided to develop their remote work policies, and these gradually became part of their business goals. While there are employers who are still weighing up the pros and cons of the concept, there are two arguments which definitely support remote work: the principle of work-life balance and the fact that work from home is technologically possible in an increasingly greater number of business sectors. It also provides the possibility of meeting current challenges by attracting top talents. The possibility of employing staff from the global pool is undoubtedly attractive for some companies, although it could give rise to certain risks (cross-border remote work entails risks arising from a change of jurisdiction, permanent establishment, immigration issues, etc.).
Much has changed in the last two years, not only in the job market but also in the legislation of individual countries. What is the situation today? This publication seeks to shed greater light on the legal solutions currently implemented in 25 European countries, from the types of telework and the procedures for its implementation, through the obligations imposed on employers and the rights of employees to aspects of liability.
We believe that after reading this Guide, you will be in a better position when developing a new model of remote work in your organization and answering the question as to whether the solutions proposed are viable in your country, what costs will be involved and which documents or other forms of communication with personnel are required at each stage.
Implementation of Remote Work in Italy
Italian law outlines three different types of remote work: telework, agile work, home manufacturing (“lavoro a domicilio”).
Telework consists of work performed on a regular basis outside an employer’s facilities, using information technology and involving work which could also be performed on the employer’s premises. Telework is usually performed from a single location (often the employee’s home) with the same working time schedule as office employees. Telework is regulated by the social partners’ 2002 European Framework Agreement, implemented in Italy by a 2004 Interconfederal Collective Agreement on Telework.
Agile work refers to work performed, with or without technological tools, partly on an employer’s premises and partly outside them, with employees having flexibility to choose the place of work and the working time deemed more suitable, but within the maximum working hours provided for by law and by the appropriate collective agreements. Agile work is specifically regulated by statutory provisions, as well as by a general collective agreement valid for most industries (the Interconfederal Collective Agreement on Agile Work) and specific sectorial collective agreements. Collective agreements address most aspects of agile work.
Home manufacturing work (“lavoro a domicilio”) consists of the performance of manufacturing activities by employees at their home or elsewhere. Home manufacturing is remunerated through piece work remuneration tariffs.
Unless specified otherwise, all the comments in this article refer to “agile work”.
Agile work is voluntary (therefore, an employer may not impose it) and each side may withdraw from it by giving proper notice.
In principle, agile work must be implemented through an individual agile work agreement between the employer and the employee who is going to perform the agile work. An employee’s refusal to perform agile work does not constitute grounds for dismissal for just cause or justified reason, nor does it incur disciplinary measures.
Certain categories of employees have a right of priority in the event that an employer implements agile work: parents of children under 12 or of children with disabilities; seriously disabled employees; or employees who have caregiver responsibilities. From time to time temporary measures (extended, with amendments, multiple times) provided that under specific circumstances (and subject to certain conditions) certain employees (such as employees with fragile health) were entitled to agile work.
The individual agile work agreement has to outline the employees’ rights and duties, the fixed or indefinite term of the agreement, rest periods and the technical and organizational measures to ensure the employees’ right to disconnect from their tech working tools; how employers should exercise their authority to control employees; and any specific disciplinary provisions connected to agile work performance. It is also very common for individual agreements to stipulate such matters as the maximum number of days that should be worked on an agile basis (with the remaining days to be worked at the office i.e. so -called hybrid work).
Required involvement of employee representatives and public / immigration authorities
Employers have no statutory obligation to involve the unions or the works councils regarding the implementation of agile work agreements, but it is fairly common for the unions to insist and negotiate such aspects as the reimbursement of costs, the organization of agile work and other matters.
Employers are required to report the names of the employees performing agile work to the Ministry of Labor, as well as the start and termination dates of the agile work. Failure to report will result in an administrative fine of 100 to 500 euro being imposed by the Labor Inspectorate for each employee concerned.
Non-EU national digital nomads performing a highly qualified activity through the use of technological tools, for employers that are not based in Italy, need not obtain a work permit. A visa to enter Italy is sufficient, in which case they may obtain a permit of stay for up to one year (upon condition that they have health insurance cover and subject to compliance with tax and social security provisions).
Equipment & Compensation for remote work expenses
The law and the Interconfederal Collective Agreement on Agile Work do not provide a stringent obligation on employers to provide equipment to agile workers. Employers usually provide laptops and other similar devices necessary for the performance of agile work. The parties may however agree otherwise. The costs of maintaining and replacing the employer-provided tools necessary for the performance of agile work are borne by employers. Employees are obliged to immediately report any damage, loss or theft of said equipment.
There are currently no specific law provisions obliging employers to reimburse costs (such as electricity and internet bills) incurred by employees when performing agile work. However, this is a frequent request on the part of employees and unions.
Currently, there are no special tax rules in favor of employees who work remotely. However, in connection with the COVID crisis first, and the energy crisis afterwards, the caps for benefits granted by employers to their employees (i.e. not specifically to agile workers, but including energy and other utility bills) was increased for specific tax years (and such measures might be reintroduced in the future).
Working time, performance and right to disconnect
There are no special rules on working time for agile workers: they are subject to the ordinary working time rules, as well as to the ordinary recording of working time through the Libro Unico del Lavoro (in 2003 Italy implemented the EU Working Time Directive without any significant deviations therefrom).
One of the principles regulating agile work is the flexibility of working hours. Agile work may be based expressly on objectives rather than working hours. If the agile work performance is based on a due amount of working hours, agile workers may not change their required number of working hours but they may flexibly determine when they perform their work (except for any limitations agreed with their employer). In any event, agile workers may not exceed statutory limits on working hours.
Employees have a right to disconnect. The law, however, does not define how disconnection should be implemented in practice. It simply requires individual agile work agreements to define “… the technical and organizational measures necessary to ensure the disconnection of employees from technological tools.” The Interconfederal Collective Agreement on Agile Work provides that individual agile agreements must identify the hours during which an employee may disconnect, as well as the technical and organizational measures necessary to enforce their right to disconnect.
With regard to teleworkers, the 2002 European Framework Agreement on Telework provides that employers may check whether the telework place complies with safety laws, including through inspections. However, when the location of the telework is an employee’s home or domicile, such checks require the consent of the employee. Employees are also entitled to request inspection visits. Italian safety laws implemented such principles literally. Their wording is broad enough to also apply to agile employees (and the Interconfederal Collective Agreement on Agile Work provides for this), at least under those circumstances in which a specific recurrent external place of work can be identified.
The limitations, if any, on the timeframe of the agile work must be outlined in individual employment agreements (and/or in policies or collective agreements incorporated by reference in the individual employment agreements). Employers (as well as employees) may withdraw from individual agile work agreements by giving the notice provided by law or in the individual agile work agreement (usually no less than 30 days).
The individual agile work agreements must stipulate how employers will exercise their authority to control the employees’ performance outside the employer’s premises. Employers are, however, obliged to respect the privacy of employees, in accordance with the ordinary rules. Employers may not, for example, install hidden software on the employees’ computers. Controls may be installed on the tools used by the employees in the performance of their duties (e.g. computers, tablets, smartphones) Such controls must, however, be used in compliance with statutory rules on controls and therefore employees must be informed as to how controls will be conducted.
In the event that there is a commitment to regular or agreed working hours and an agile employee abuses this, an employer may initiate disciplinary proceedings against the employee in accordance with the ordinary rules governing disciplinary matters.
Health and safety and data protection
Since agile work may from time to time be performed from an employer’s premises and from various unspecified locations, employers are responsible for health and safety in different ways. When employees work from an office (or from another of the employer’s facilities) employers are responsible for ensuring health and safety in accordance with the ordinary rules, including ensuring that the workplace complies with all the occupational safety requirements.
However, employers cannot ensure in the same way the safety of the multiple other places from which an agile employee may work. Therefore, employers are obliged to provide agile employees annually with a written notification outlining the general and specific risks related to the way in which their work is performed. Moreover, employers are required to provide agile employees with all useful information related to the proper use of the equipment provided by their employer; an employer and an employee must agree on the safety requirements relating to the use of tools belonging to the employee. Arguably, in the event of accidents outside an employer’s premises, employers are liable (including, if applicable, criminally liable) for any breach of their duty to protect employees, where the notice and the information provided to employees was inadequate. However, they will not be considered in breach in the case of accidents caused by the failure on the part of an employee to follow their employer’s instructions.
In the case of teleworkers (as opposed to agile employees), employers are responsible for ensuring that the place of work complies with occupational safety rules.
In order to be as specific and focused as possible, employers may progressively refine their annual notification to agile employees regarding the general and specific risks related to the performance of agile work and may also provide such notification more frequently. Employers may also provide focused training which addresses the potential risks arising from different circumstances.
With regard to teleworkers, the 2002 European Framework Agreement on Telework provides that employers are entitled to verify whether the telework place complies with safety laws, including through inspections. However, when the telework place is an employee’s home or domicile, such checks require the consent of the employee. Employees are also entitled to request inspection visits. Italian safety laws implemented such principles literally. Their wording is broad enough to also apply to agile employees (and the Interconfederal Collective Agreement on Agile Work provides for this), at least under those circumstances in which a specific recurrent external place of work can be identified.
There are no special rules specifically addressing the physical health of remote employees, but the ordinary rules are sufficiently broad to also cover the risks that remote employees may face.
Employers are obliged to comply with data protection laws regarding the processing of data related to agile employees, as well as employment laws on the remote monitoring of employees. The Interconfederal Collective Agreement on Agile Work recommends that a data processing impact assessment always be carried out and that policies be adopted concerning agile work which are consistent with the concept of security by design and which address the management of data breaches and the adoption of adequate security measures (such as cryptography and authentications systems) and provide training on the use, safekeeping and protection of remote connection tools, as well as on precautions to be adopted when performing agile work and the management of data breaches.
Liability
Employees who perform agile work are in principle entitled to the same protection against accidents as all other employees. Thus, work-related accidents suffered by agile employees are treated in the same way as any other work-related accidents. It may, however, be more difficult for agile employees to prove that an accident occurred during the performance of their work and not during their personal daily activities.
In Italy, there is a mandatory governmental insurance plan which covers accidents at work and occupational diseases (workers’ compensation) which also expressly applies to occupational accidents and diseases arising from risks related to work performed outside company premises. INAIL (the governmental agency which manages said insurance scheme) must assess whether a reported injury or disease is covered by the insurance plan. Reporting occupational accidents and diseases is the obligation of the employer in accordance with the ordinary rules applicable to agile and nonagile employees.
There are no special rules regulating damages caused to employees’ or employers’ property, respectively, during the performance of agile work. Liability for those damages must therefore be assessed in accordance with the ordinary rules governing causation, negligence, wilful conduct and so forth. The Interconfederal Collective Agreement on Telework instead suggests that all such liability should be borne by employers, subject however to the provisions of individual agreements.
Whether or not a company liability insurance would cover damages caused to employees’ and employers’ property, respectively, during the performance of agile work depends on the insurance policy conditions agreed. In principle, coverage applies regardless of whether damages relate to agile performance, but contractual provisions may allocate liability in different ways.
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