Remote working and caregivers’ rights: a blurred line between a right of the employee and a decision of the employer
- Enactment of the European Directive 2019/1158
With the legislative decree published in June 2022 (no. 105/2022), Italy has finally enacted the European Directive 2019/1158 on work-life balance for parents and caregivers.
As clearly stated in the directive, the need for a reviewed specific regulation (previous rules were stated in an older 2010 directive) is grounded on the fact-based statement that work-life balance remains a considerable challenge for many parents and workers with caring responsibilities, mostly because of the increasing prevalence of extended working hours and changing work schedules, which has particularly a negative impact on women’s employment that, statistically, are mainly the primary parent and caregivers.
- Remote working as work-life balance tool beyond pandemic
An enhancement of the right to request flexible working arrangements also through the use of remote working arrangements is seen as a potent tool as to allow the retention in the employment market of those employees that can be generally considered as primary caregivers.
For giving an example, it is well documented that over the most critical moment of the pandemic crisis Italy has been specifically hit by a significant reduction of the women representation in the work force, with plunging numbers in an already critical area. Around 77% of resigning parents (with children below 3 years) in 2020-2021 were mothers, and among them a striking 95% has indicated as reason for resigning the challenges in balancing work and caring obligations, while in the category of fathers the most part was motivated by having found a new job.
Back to the pandemic experience, remote working had become, as result of the restrictions, the standard mode of performing the activity in many sectors, especially in provision of services, and emergency laws introduced the right for caregivers, parents and the so called “fragile employees” to obtain a remote working arrangement as to protect their health and limit the impact of the possible hiccups in public support (schools, day-care institutions, social services, etc.). Till then, in Italian law landscape remote working arrangements had relied on a free choice and decision of both parties of the employment agreement as mutual consent was (and still is) needed as well as the alternation between remote and in presence work.
During emergency also some case law was formed on the matter, stating that employees’ access to remote working arrangements had to be regulated according to rational principles, good faith, not discrimination and considering preference rights given by the law. In addition, it has been stated that the compatibility between duties and remote mode had to be assessed based on the actual conditions of the work place and preserving the interest of the employer to receive a fruitful and “full” working performance.
- Blurred line between mutual choice and right
According to the legislative decree no 105/2022, the employers who “enter into remote working arrangements” are obliged to give priority to requests belonging to workers with children up to 12 years or with disability, disable employees and caregivers.
Based also on the above principles it seems that generally the employer cannot be “forced” to have a remote working program in place, but once it is introduced, it has to prioritize the mentioned categories in the access, likely also in a disproportionate way compared to the other employees but within anyway the principles indicated by the law (alternation, compatibility with duties, working on objectives). This also implies the need to have a specific and well-grounded reason for not granting such access if based on a compatibility with the duties or other organization reasons.
Pursuant to the law, any discrimination or measure adopted as reaction to the request of accessing the remote working mode, shall be considered retaliatory or discriminatory and, therefore, is null and void.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Francesca Pittau.