Recurrent legal considerations and questions on the choice of place of work
In Italy, the massive use of smartworking during the last period has shown that it is actually possible to work anywhere and that not necessarily the place chosen to work affects the quality of the performance rendered. New perspectives and new questions about the place of work are therefore emerging.
Many workers consider the possibility of working under new horizons (some have even chosen to move), while companies will draw conclusions and reconsider the opportunity of spending (often not of little consequence) on office rent.
In concrete terms, what happens in relations between workers and companies when one of them decides to move or when the place of work changes ? Here is an overview of the most frequently asked questions and legal aspects to consider when assessing a possible new definition of the relationship between the employer and his staff, according to Italian law.
First, an employee can move without notifying his employer ?
The choice of home/residence is considered a fundamental freedom and the domicile chosen by the worker relates only to his personal sphere. An employee can then decide to live wherever he wants without notifying or asking his employer for permission.
However, this must not affect the fulfilment of the obligations arising from the employment contract: the employee is therefore obliged to respect the days of presence required at the assigned place of work, working hours, etc. Failing this, the defaulting employee risks a disciplinary action (in the most serious cases, the dismissal).
If an employee moves hundreds of kilometres from his place of work, may the employer be obliged to contribute to the cost of traveling from home to the place of work?
Under Italian law, there is no rule of law which requires the employer or other persons to bear or reimburse the employee for the costs that the employee has to bear for travel from his home to the ordinary place of work indicated in the employment contract (in fact, this is not a case of travel).
Such reimbursement of expenses (total or partial) must be recognized only if provided for in the Collective Bargaining Agreement or if the employer has taken charge of it to all or some employees in any company contract or if the same is provided for in the individual employment contract.
The employer may consider whether to introduce such refunds as forms of corporate welfare.
An employee who has moved, or intends to do so, may request an adjustment of his working conditions and in particular require to work in smartworking or to continue to do so?
The employee who asks for a change in his working conditions essentially asks for a change to his employment contract. Agreements may therefore be reached on greater flexibility in terms of working hours, working days or how to perform the service (in presence or in smartworking).
However, the agreement of the two parties is required to amend the employment contract; failing that, the contract may be terminated. Resolution may take place by amicable agreement or by disciplinary proceedings, for example in the event of unjustified delays or absences.
The fact that the health crisis of recent months has shown that working remotely is feasible will certainly lead companies and workers to consider differently how individual work performance are carried out.
Even in smartworking, is it really allowed to work anywhere?
In the event that the worker and the company have already agreed that the work performance can be rendered in an agile manner, the worker will still have to comply with the terms of the agreement concluded.
Specifically, the employee cannot avoid being reachable at any time slots that may be determined, from guaranteeing a quality connection, nor from being available to go to the site in case of emergency. In addition, the place chosen to work in an agile way must ensure compliance with the needs in terms of confidentiality of business information and cybersecurity.
On the contrary, if a company moves its registered office to a place far from its original location, may the employer require the employee to transfer?
In the event that the company decides to transfer an entire part of the enterprise (department or subsidiary) or the company as a whole, it is a collective transfer.
The operation, in that it involves more general interests bilaterally (for workers and the employer) than those affected by an individual transfer, deserves appropriate scrutiny by the trade unions in order to assess the company’s reasons and the way in which the transfer is implemented. On the other hand, examination by the trade union is mandatory if provided for by collective bargaining agreement.
As a rule, the transfer of workers, even if individual, will be legitimate if motivated by proven technical, organizational and production reasons. If the worker refuses the transfer for no good reason, the employer may order the dismissal for justified subjective reasons.
Especially in the event of the transfer of the individual worker, the consistency and effectiveness of the organizational needs declared by the employer as the reason for the transfer will also have to be evaluated in the light of the smartworking experience during the pandemic and the possibility that the worker can continue his path in an agile way.
The collective bargaining agreement generally governs the transfer from an economic point of view, providing for the payment of specific allowances to the worker, as well as reimbursement of the costs incurred in moving to another location.
The choice of place of work is therefore of prime importance, both in view of the personal interests of the workers and in view of the strategic implications for companies. In Italy, the theme is currently at the centre of entrepreneurial reflections; therefore the legal implications of planning a possible change of organisation should not be underestimated.