The Tribunal of Grosseto ordered a private employer to grant \u201cagile work\u201d to the employee who had requested it.<\/p>\n\n\n\n
Case ref: Court order of 23 April 2020, Tribunal of Grosseto<\/em><\/p>\n\n\n\n By Court order of 23 April 2020, the Tribunal of Grosseto ordered a private employer to grant \u201cagile work\u201d to the employee who had requested it.\nThe 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.\n(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).\nThe Company, in defending the action, justified refusing the employee\u2019s 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\u2019s organizational chart again without incurring significant costs.\nIn addition, the company produced a medical certificate attesting to the employee\u2019s 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.<\/p>\n\n\n\n At this point, after clarifying the admissibility of the emergency injunction, the judge ruled on the existence of the \u201cdanger in delay\u201d.\nThe 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\u2019s \u201cpersonal medical condition\u201d.\nThe 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\u2019s home and the company PC already configured for this purpose.\nWith 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.<\/p>\n\n\n\n At this point, the Judge briefly summarized the regulatory measures adopted to deal with the COVID-19 epidemic.\nOn the one hand, he pointed out that, although important and useful in this particular context, the agile working mode \u201ccould not, and cannot, be imposed in a general and indiscriminate manner\u201d and on the other hand, he recalled that the legislator expressly provided that \u201cworkers 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\u201d (art. 39, para. 2, DL 18\/2020).\nBy virtue of the above, the Judge found the employer\u2019s 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.\nAccording to the Judge, \u201cit 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\u201d.\nIn the present case, the refusal to grant agile work and the prospect of having to choose between unpaid leave and accrued holidays, was unlawful.\nFinally, the Judge acknowledged the existence of the \u201cdanger in delay\u201d, 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.\nFor all the above reasons, the judge ordered the company to grant the plaintiff\u2019s request for agile working, and the company to pay the plaintiff \u20ac50 for each day of delay in putting it in place.<\/p>\n\n\n\n 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).\nHowever, in analyzing the reasons for the decision, in the writer\u2019s opinion, the Judge did not intend to establish a general right of the employee to \u201cagile work\u201d, which in fact has no legal basis.\nFrom 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.\nTherefore, 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.<\/p>","protected":false},"excerpt":{"rendered":" Il Tribunale di Grosseto ha ordinato ad un datore di lavoro privato di concedere il \u00ablavoro agile\u00bb al dipendente che ne aveva fatto richiesta Ordinanza 23 aprile 2020, Tribunale di Grosseto Con ordinanza del 23 aprile 2020, il Tribunale di Grosseto ha ordinato ad un datore di lavoro privato di concedere il \u00ablavoro agile\u00bb al […]<\/p>","protected":false},"author":1,"featured_media":1891,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[44],"tags":[],"yoast_head":"\n