Telework: random event or the future?

Perhaps the time has come for Labor Law to modernize and be based on, or at least to consent to, different parameters for carrying out and evaluating work.

The tendency to resort to teleworking during the recent Covid-19 pandemic drew attention to a figure hitherto relatively ignored. Where provision of work in the workplace was the rule, as a result of forced confinement workers and families had to learn to organize differently, and together, at home.

The advantages of doing work at home are several, and of various kinds. You save travel time in traffic or public transport and, with that, you save the environment (the news reports that the city air was never as clean as when we were all at home).

You avoid the stress of the necessary compliance with fixed times to get to work, since you are already in the place where work starts, without relying on imponderables such as the weather or a road accident. The period of contact with the children increases, with presence at meals and routines (bathing, bedtime) before nonexistent or carried out in a hurry. In general terms, the reconciliation between professional and personal and family life is facilitated.

Besides, it is not only for the worker that teleworking brings (or can bring) advantages, since there are also benefits for the company; just think about cost savings in terms of travel, office area (and its impact on income), utilities (electricity, water, internet). In certain sectors of activity or professions, the place where the work is carried out is relatively indifferent, as long as the contracted result appears done.

That said, teleworking does not only have advantages, even for functions that (to quote terminology we have become used to recently) “allow”. The organization and distribution of work is more difficult at a distance and the sharing of experiences and exchange of ideas resulting from spatial proximity with colleagues is essential, and enriching. On the other hand, it is in the workplace that we find the materials necessary for the exercise of the profession and, for many, a work environment conducive to reflection. The necessary socialization required by common workplaces makes us more flexible and makes us (hopefully) more thoughtful and understanding.

From a legal point of view, teleworking poses clear challenges. Remember the doubt, during the pandemic, about whether teleworkers maintained their right to meal allowance, with voices dissenting in one direction or another. Distance work - at home or outside it - makes it very difficult for employers to control compliance with working hours, the work development process and, to a lesser extent, the work outcome itself.

On the worker side, the reverse side of the medal for greater flexibility in terms of observing working times is the dissipation of the separation between work and rest, brought about by technological developments, with the issue of the right to disconnect gaining particular acuity. As can be seen, the compression of the worker's privacy is increased when the workplace and private home are confused (and for this reason the legislator seeks to protect it - to the privacy of the teleworker - in Article 170 of the Labor Code).

The questions surrounding working time are particularly demonstrative that Labor Law is designed for a traditional organization of the company and employment, based on the temporal coincidence and the spatial proximity between the employer (or the hierarchical superior to which he delegates his responsibilities). competencies and responsibilities) and worker.

For this reason, typical instruments of the work relationship, such as the power of direction or the duty of obedience, live poorly - or live worse - with a way of doing work at a distance. The working-time / rest-time dichotomy itself is called into question in increasingly frequent phenomena such as prevention and on call.

Arriving here, the phenomenon of widespread teleworking of recent times has proved to be a good opportunity to reflect on the need to idealize work and workers in terms of the one and the other are usually thought of.

The job is done well when it has quality. For that, it matters little if it was executed between 9 and 6 (except, of course, commitments at specific times; if the worker has scheduled a video conference with a client, or even with colleagues, his punctuality is not indifferent). Likewise, productivity and quality of work are measured less by the number of hours the worker is available and more by the result of his effort.

Without ignoring the fact that the maximum periods of work were defined based on health dictates and that, from the outset, they serve as a benchmark for employers less sensitive to legal restrictions and workers who are not aware of their rights, or are unable to impose them, we all know that the strict interruption of work at certain rigid hours is not realistic and, if it were carried out, it would be counterproductive.

Often, their failure to comply is dictated by the zeal of the worker himself. The current legislative framework, based on rigid parameters, results in liability of various kinds - patrimonial, administrative - for companies, perhaps in contexts that they cannot control, assuming a proactive and effective inspection by public services ( of the Authority for Working Conditions, namely) for which they do not have the necessary means. The result? Wordy rules, often difficult to reconcile, that are not applied in practice.

In some cases, the legal duty has an archaic content, out of step with current times (that is to say, the duty to register “in a proper book” changes to working hours lasting no more than one week, as set out in Article 217, n . 3 of the Labor Code, up to a maximum of three per year?).

All in all, the time has come for the Labor Law to modernize and be based - or at least to consent - on different parameters for carrying out and evaluating work. Doing so would have another beneficial effect: traditional models of performance evaluation, based (at least in part) on the number of hours worked, are susceptible to manipulation (the worker who does not record the meal interval, or who distorts the period which took a long time to complete a certain task) and disadvantaged groups of workers such as women, with less availability as professional responsibilities are added to parental responsibilities.

For all this, teleworking can make an invaluable contribution. It is not susceptible to be applied in all professions or work environments and, therefore, not all are suited to work in isolation. For this reason, it is not proposed that one of the parties to the employment contract may impose on the other the performance of distance work (a trait that, moreover, the legal regime already accepts, precisely in the case of parental responsibilities).

But for those who find an advantage in this, it is a form of employment contract of unequivocal interest. At the same time, benefits are combined in terms of time management, reconciling professional and personal life, reducing costs and preserving the environment.

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