1. Introduction.
The right to disconnect consists of the right for agile workers to refrain from making, as well as from receiving, electronic communications of a work-related nature-including phone calls, emails, and/or instant messaging- outside of working hours.
A first significant legislative intervention in this regard can be found in the regulation of agile work. In fact, Article 19 of Law No. 81/2017 provides that the agreement between the parties also identifies the worker's rest time, as well as the technical and organizational measures necessary to ensure the worker's disconnection from technological work equipment.
A provision, as the doctrine has pointed out, that is overly concise and does not indicate ways, determined time slots and specific measures to achieve this result.
The absence of precise regulations leaves companies without guidance and guidelines to follow. Therefore, they have the arduous task of protecting the rest time of their employees, and at the same time, the duty to monitor their performance, while making sure that, at the same time, they always safeguard company productivity.
However, a regulatory development of the so-called "right to disconnect" seems to be close; the European Parliament last year passed Resolution 2019/2181 concerning recommendations to the European Commission precisely on the proposal for a directive on the right to disconnect, through the introduction of an objective system, which would allow the measurement of daily working time while respecting workers' right to privacy and personal data protection. According to the Parliament, precisely in light of the changes brought about by the pandemic such as, for example, the increasing use of digital tools at work, it becomes more necessary than ever to take action on this issue.
All of this, therefore, resulted in an explicit call for the European Commission to take action through a directive that would provide a legislative framework establishing minimum requirements on remote work throughout the Union, while taking into consideration the European social partners' framework agreement on digitization, which in fact also includes provisions on connection and disconnection.
Meanwhile, in Italy, the Chamber's Labor Commission reached an agreement on the so-called Unified Text on smart working , which, should it become law, would replace the current legislation (i.e., Law No. 81/2017, Art. 18 ff.).
According to the bill, the new Article 18 would reserve an important role for collective bargaining (more than it has), which would be entrusted with the regulation of a number of "hot" aspects of the agile work relationship, including precisely the right to disconnect from technological instruments, IT platforms and any communication tools and/or applications.
In addition - according to the provisional text approved by the Labor Commission - there would be the introduction of a new article, 24-bis, which would expressly stipulate that "the worker, whether in ordinary mode or in agile mode, is always entitled to the subjective right to disconnect to be understood as the right to estrange himself from the digital space and to interrupt his connection from the technological instruments and IT platforms in his possession, without this resulting in negative effects of a disciplinary nature or pay curtailment."
2. Experiences of corporate collective bargaining.
In the absence of clear legislative indications, there have been cases, especially in large companies, in which company bargaining has intervened to supplement on the subject of disconnection some legislative gaps, trying to delineate its contours, which has happened in truth not always in a comprehensive and homogeneous way.
Early experiences, even prior to the agile work legislation, include the Barilla Agreement of 2015. In the minutes there is no mention of disconnection, but among the modalities of the work performance, reference is made to the "normal working hours of the place of work" and it is specified that during the performance of smart working, within the normal working hours, the person shall "make himself available and contactable through the company tools."
According to the ICCREA Agreement of 2017, "smart working can only be carried out during daytime working hours between 7 a.m. and 7:15 p.m. and on weekdays, and its performance cannot in any case exceed the limits provided for by the regulations [...] outside the hours of this agreement technical disconnection is provided, the worker is granted the right to disconnect and not to answer emails and/or phone calls."
In the SIEMENS agreement, dated June 6, 2017, it was expressly agreed that the connection to work technology equipment will be contextual to the work performance time slots throughout the day, with the consequence that outside these hours, the worker will be allowed to disconnect.
The most recent agreements include the Wind Company Agreement signed in February 2021, which provides - in explicit compliance with Article 19 of Law No. 81/17 - work breaks during which the worker will have the right to disconnect from work tools. Specifying, then, that the right to disconnect will also be guaranteed to all employees from the end of the shift until the next working day.
In contrast, the UNICREDIT agreement, signed on April 13, 2018, introduces a concept of using electronic equipment based on the prohibition of abuse and according to common sense. In fact, Article 16 of the agreement in question provides for the protection of disconnection time in the following ways: "business equipment should be used in compliance with working hours and in an appropriate manner, avoiding abuse of digital channels (such as texting, video calls, whatsapp, chats, phone calls, pop-ups), the use of personal devices for business purposes is allowed only in cases of real urgency (avoiding texting, phone calls and sending emails to personal devices). Therefore, responsible use of e-mail is required, respecting official working hours, daily and weekly rest times, and vacation/sick leave periods. In addition, e-mails should be sent "only to the address of persons strictly necessary [...] avoiding excessive use of e-mail, preferring direct contact whenever possible."
More recent, and it seems to be fair to say more comprehensive, is the Benetton Group Agreement, dated September 9, 2021, which contains some interesting provisions that seek to balance the right to disconnect with any specific business needs, which thus seem, where they exist, to be able to limit the right to disconnect, making it coexist with the proper and undeferrable needs of the company's production cycle. According to this agreement on work days carried out in agile mode, employees must always be reachable via e-mail, computer platforms, etc. In case they are not reachable, they are required to send a reasoned justification to their supervisor. In addition, employees are required to comply with the daily and weekly hourly limit provided by law and bargaining, and "disconnection shall take place according to normal working hours." In this regard, during rest times - coinciding with the disconnection times - "except for special needs [...] it is not required to perform work and thus read e-mails, receive company phone calls, access or connect to the company computer system. During rest and disconnection times, the employee may then disable the devices used for the performance of workperformance." In order to preserve rest periods, "the scheduling of meetings and/or otherwise work appointments will take place within normal working hours to the extent possible."
The experiences briefly reported in the exposition we have summarized show that in Italy disconnection has already experienced some application experiences, albeit sporadic, not homogeneous and not always timely.
Some of them are limited to the mere recognition of the right, while others regulate in more detail both disconnection and possible exceptions in cases of urgency and/or special business needs.
It would therefore be advisable - without prejudice to the importance of company bargaining, which alone can decline regulatory precepts to the specific needs of the individual company - that the essential contours of the right to disconnection be provided for by the legislator and that the latter, in introducing a right that seems useful above all for the purpose of preventing abuse, should not, however, provide for an unlimited right, but rather impose its responsible use, the enjoyment of which does not go to frustrate particular and specific company needs, in fact damaging the company and its performance.
