Author(s): Valeria Morosini 

Member Firm(s): Toffoletto De Luca Tamajo e Soci

The Italian Law on Smart Working provides for increased flexibility to ensure a better work-life balance for employees, as well as increasing employers’ competitiveness. It defines ‘smart working’ as an agreement between the parties "with no precise constraints in terms of working hours or workplace and with the possible use of technology to enable the work to be performed. The work is carried out partly on the company’s premises and partly outside, without any fixed location – provided this is done in accordance with the law and collective agreements concerning the maximum daily and weekly working hours.”

Therefore, Smart Working is not a new type of contract but simply a different way to perform work. It is different from teleworking, where there is a fixed work place away from the office. Smart working is detached from any one place. Work can be performed on company premises, or outside - but with no fixed location.

Tips for the employment contract

It is essential to have an individual agreement between the parties. This could be either fixed-term or permanent and withdrawal from it is permitted with notice. The agreement must specify the way the employment relationship is to be performed; the employee’s rest periods; the necessary technical and organisational measures to ensure that the worker disconnects from electronic work tools; and information about what type of conduct may lead to disciplinary sanctions.

The employer must have an internal policy regulating the use and custody of electronic equipment and how it can be safeguarded from damage and theft. The policy should also cover how loss of the employer’s confidential information can be avoided and should address the methods used by the employer to monitor smart workers, whilst respecting their privacy.

Note that although smart workers should not be bound by precise working hours, they are still subject to the maximum working hours defined by law and collective agreements.

With regard to health safety at work, the employer already has a general obligation to disclose the risks assoicated with the way the work is performed. The new Law provides for workers to be protected against accidents and illnesses arising from the fact that the activity is performed off company premises. There is also protection against accidents occurring on the way to and from the place where the employee is working, provided this is reasonable.

Given that most of the work will be carried out in a way which is out of the employer's control, the employment agreement should be quite specific about the employee’s obligation to cooperate. This obligation already exists in law, but some specification should reduce the risk of claims against the employer at a later stage.

Another aspect to consider is incentive pay (e.g. productivity awards and bonuses) - which are normally linked to the employee’s presence in the office. The employer should make sure not to penalise people for working somewhere else.

Conclusion

Many of the new rules on smart working pick up on issues that previously had to be tackled by collective bargaining or internal company regulations. And in practice, over the last few years, employment arrangements of this kind have been widespread. This trend will no doubt continue, but in the meantime, employers will need to ensure that their existing flexible arrangements comply with the new regulatory framework.