ITA 
The Tribunal of Grosseto ordered a private employer to grant “agile work” to the employee who had requested it.
Case ref: Court order of 23 April 2020, Tribunal of Grosseto
By Court order of 23 April 2020, the Tribunal of Grosseto ordered a private employer to grant “agile work” to the employee who had requested it. The case arises from an injunction filed under Article 700 of the Italian Procedure Civil Code, by an employee with back office duties, who, after having used up his accrued holidays, was denied the opportunity of working remotely, which had been granted to other colleagues. (It should be noted that the employee in question was suffering from a serious lung disease, which led to the recognition of invalidity from 2018 and the resulting permanent reduction of his working capacity to 60%, with a reduction also in his ability to walk). The Company, in defending the action, justified refusing the employee’s request, saying that it had chosen the employees to be placed on remote working when the plaintiff was on sick leave, thus making it impossible to change the company’s organizational chart again without incurring significant costs. In addition, the company produced a medical certificate attesting to the employee’s temporary unsuitability for the specific task, since he could not be subject to any additional risk of contracting the virus by virtue of the lung disease from which he was already suffering. For these reasons, the company had offered the employee unpaid leave or to use up his accrued holidays.
At this point, after clarifying the admissibility of the emergency injunction, the judge ruled on the existence of the “danger in delay”. The Judge first of all highlighted the applicability of agile work in the case in question, given the type of tasks entrusted to the plaintiff, noting that the request was justified by the plaintiff’s “personal medical condition”. The organizational and economic difficulties cited by the company were considered generic and unfounded, given the size and structure of the company as well as the wi-fi system already set up at the plaintiff’s home and the company PC already configured for this purpose. With regard to the temporary unsuitability for the specific task, according to the Judge the medical certificate merely indicated the necessity to be removed from the usual place of work, and not the inability to perform the tasks from home, since there was no direct link between the disease and the job itself, but only between the illness and the actual workplace.
At this point, the Judge briefly summarized the regulatory measures adopted to deal with the COVID-19 epidemic. On the one hand, he pointed out that, although important and useful in this particular context, the agile working mode “could not, and cannot, be imposed in a general and indiscriminate manner” and on the other hand, he recalled that the legislator expressly provided that “workers in the private sector suffering from serious and proven diseases with reduced working capacity are given priority in granting requests to perform work in an agile manner” (art. 39, para. 2, DL 18/2020). By virtue of the above, the Judge found the employer’s refusal to grant the request to be illegitimate, arguing that the emergency regulations were mere recommendations and did exonerate the employer from certain duties and responsibilities. According to the Judge, “it is certainly not intended here to maintain that there is a general binding regulatory provision, but simply that, having ascertained the existence of the conditions for resorting to agile work, the employer cannot act in an unreasonable or unjustifiably discriminatory manner against this or that worker, even less so where there are priorities linked to health reasons”. In the present case, the refusal to grant agile work and the prospect of having to choose between unpaid leave and accrued holidays, was unlawful. Finally, the Judge acknowledged the existence of the “danger in delay”, since the time it would normally take to assert his rights would force the plaintiff in the meantime to renounce fundamental and intangible rights in having to choose between unpaid leave and using up accrued holidays. For all the above reasons, the judge ordered the company to grant the plaintiff’s request for agile working, and the company to pay the plaintiff €50 for each day of delay in putting it in place.
There has been much debate about this decision, at a time when the freedom of economic initiative, guaranteed by the Constitution, appears to be severely limited by political choices, namely: lockdown and the protection of workers (i.e. ban on dismissals, obligation to manage employment levels in agreement with the unions in companies that apply for state loans). However, in analyzing the reasons for the decision, in the writer’s opinion, the Judge did not intend to establish a general right of the employee to “agile work”, which in fact has no legal basis. From another angle and worth noting, the Judge stated that the employer, in granting, or not, the request, could not act in an unreasonable or unjustifiably discriminatory manner, thus excluding the possibility of a refusal without any assessment of legitimacy. Therefore, before replying to such requests, it appears essential to analyze the business context and all the facts and circumstances of the case in question, in order to ward off future litigation.