Italy: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Italy.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

In Italy, the right to disconnect is expressly provided within so-called “smart working” (“lavoro agile”) i.e., an individual agreement whereby the working activity can be performed partly within the employer’s premises and partly remotely with no constraints in terms of the time or place of work.

Apart from smart working, there is no general right to disconnection set out by law. A right of this kind can be inferred as being implied by the legislation regulating working-time limits.

2. Is the right governed by legislation, a code of practice or both?

Within smart working, an employee’s disconnection right is explicitly set out by Article no. 19, par. 1, Law no. 81/2017, pursuant to which the individual smart working agreement must include the employee’s rest times as well as technical and organisational measures necessary to ensure the employee’s disconnection from technological work tools.

Company policies, codes of practice and National Collective Bargaining Agreements may include specific provisions on the right to disconnect. By way of example, the National Collective Bargaining Agreement for employees in the credit sector provides that:

• The use of company equipment provided shall be in compliance with the rules on work performance, guaranteeing the right of the worker to daily and weekly rest periods, holiday periods and other legitimate reasons for absence.
• Communications via telematic equipment have a concise and clear content, avoiding mass forwarding to subjects not directly interested in the communications themselves.
• Work communications shall be made, except for temporary and exceptional needs, exclusively via company devices and channels.
• Outside working hours and in cases of legitimate reasons for absence, the worker is not required to access and connect to the company information system.
• The worker may switch off their connection devices, therefore avoiding receiving company communications. Any receipt of company communications in the aforementioned time situations does not oblige the worker to take action before the expected resumption of work activity.

3. Do all employees have a right to disconnect?

The right to disconnect is currently only explicitly granted by law to smart working employees.

Company policies, codes of practice and National Collective Bargaining Agreements may include specific provisions on the right to disconnect like the National Collective Bargaining Agreement for employees of the credit sector mentioned above.

A general right to disconnection can be inferred from the legislation regulating working-time limits. In other words, the right to disconnection can be considered a sort of necessary consequence of the right not to work longer than the time set out by law or collective bargaining agreements.

4. Are all employers obliged to provide the right to disconnect?

As noted in question 1, in Italy, the right to disconnect is expressly provided within so-called “smart working” (“lavoro agile”). Apart from smart working, there is no general right to disconnection set out by law but such a right can be inferred from the legislation regulating working-time limits.

In general terms, Article 7 of the Legislative Decree no. 66/2003 states that employees have the right to 11 consecutive hours of rest every 24 hours, during which time they do not work, except for activities characterised by periods of work split up during the day or on-call arrangements. In case of breach of such rest periods, as per Article 18-bis, par. 4, Legislative Decree no. 66/2003, the employer could face an administrative sanction ranging from EUR 120.00 to EUR 3,600.00 (depending on the number of employees involved and/or the period of violation). 

5. What are the obligations on the employer?

As to the smart worker, the employer must include in the individual smart working agreement specific rules to guarantee the right to disconnection.

Apart from smart working, no general right to disconnection is set out by law. Certain collective agreements, such as the one for employees of the credit sector (see question 2), provide for a general right to disconnection and set out specific rules of conduct which must be complied with by the employer.

As mentioned above, outside the smart working and the collective agreements which set out specific rules to guarantee the right to disconnection, the general principles governing working time limits prevent the employer from expecting the employee to read and respond emails or to take calls outside working hours. Even in the event of overtime work, employers must observe the limit of the mandatory 11 hours’ rest per day.

6. What happens if an employer fails to comply with its obligations?

As to the smart workers, Law no. 81/2017 does not provide for any sanctions in the event that the individual smart working agreement does not include such specification.

Based on the general principles of law, the employee could file a claim against the employer in order to request that a judge grant an injunction to force the employer to comply with the right to disconnect and seek damages.

It is debatable whether the breach of the right to disconnect may also (indirectly) trigger the sanctions provided for by Legislative Decree no. 66/2003 for breach of the working time limits.

No case law precedents exist to our knowledge in this respect yet.

7. Have there been any reported cases on the right to disconnect?

In Italy, in addition to the National Collective Bargaining Agreements mentioned above, there have been some cases in which companies have implemented the right to disconnect throughout company-based collective agreements.

For example, there are publicly available agreements between companies and trade unions that either provide for a specific disconnection period or state that employees are not required to access and/or connect to company IT systems or activate company devices outside working hours.

8. What are the benefits and challenges of the right to disconnect in practice?

The right to disconnect, if guaranteed at the legislative level and properly respected and implemented by both companies and employees, represents a significant step towards the well-being of employees, but it also has a positive impact on the productivity of the employees regarding the companies’ targets. In fact, there are several bills and research studies related to the right to disconnect, since the massive use of digital technologies makes everyone available at anytime and anywhere. As a result, employees can suffer in terms of their right to rest, health and privacy, due to the risks arising from hyper-connectedness such as, for example, technology addiction, anxiety, burnout, etc. This in turn may trigger an employer’s liability in terms of breach of the duty to protect the health and safety of employees.

From a company-based perspective, in today’s highly globalized era, it is complex to implement effective policies that guarantee this right, especially in certain sectors that require coordinating teams in different time zones.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

The right to disconnect is currently under discussion due to a probable new bill tabled in Parliament. The proposal aims to define by law the time slots and possible sanctions applicable to ensure that this right is respected in Italy. With such regulation, the right to disconnect would no longer be a matter of negotiation between employers and employees, but a right precisely defined by detailed legislation. Therefore, even if the smart-working regulation outlined above has started to introduce a “right” to disconnect of the employees, a significant impact on the workplace will only be produced by the enforcement of a proper regulation on the matter.

For this reason, although the law makes no explicit reference to collective bargaining, and until a law is enacted to fully implement the right to disconnect, such intervention would be most opportune. In particular, collective bargaining could be a valid way to identify appropriate measures to effectively guarantee disconnection, such as, for example, defining precise time slots when the employee is not obliged to respond and/or automatic response mechanisms for emails sent outside working hours.

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

Yes. Bill No. 1290 of 6 November 2024 is currently under discussion in Parliament. In particular, Article 3, par. 1, provides that employees (and, according to Article 4, self-employed workers) have the right not to receive communications from the employer or from personnel with managerial tasks outside the ordinary working time provided for in the employment agreement and, in any case, for a minimum period of 12 hours from the end of the working shift.

Furthermore, paragraphs 2 and 3 of the Article 3 specify that communications sent during the period of disconnection do not entail any obligation on the employee, except in the case of communications sent for reasons of necessity or urgency, duly justified, in reference to which the employee is entitled to overtime pay.

In case of breach of the above-mentioned provisions, the bill provides for an administrative fine ranging from EUR 500.00 to EUR 3,000.00 to be paid by the employer for each employee involved. However, the procedure at the end of which the sanction is paid is not clear.

We should wait for further developments to see how the legislator will de facto implement the right to disconnect.

AUTHORS FROM PEDERSOLIGATTAI
Lorenzo Cairo, Partner
Morena Grilli, Associate
Alessandra Cirillo, Associate