Thanks to Juri Stani Pascarella for collaborating on this article
The Ancona Labour Court held that dismissal based on an employee’s refusal to end smart working is unlawful where the employer’s right to revoke it is expressly excluded.
Background
The case concerns the dismissal of an employee who had been rehired by a company under a settlement agreement that explicitly regulated the conditions of the employment relationship, including the adoption of a permanent remote work arrangement. The agreement, signed in 2020, provided for a hybrid working model: three days per week in remote work (so called smart working) and two on-site, to be reduced to one day on-site after two years. Notably, the agreement expressly excluded the employer’s right to unilaterally withdraw from the remote work arrangement. In 2024, however, the employer attempted to revoke the smart working mode and ordered the employee to return to traditional in-office work. The employee refused, leading to disciplinary proceedings and consequent dismissal.
Court decision
The Ancona Labour Court ruled in favor of the employee, finding the dismissal unlawful.
The judge held that the employer could not rely on unilateral withdrawal from smart working, as this had been contractually excluded, specifying that:
- the clause excluding the employer’s right of withdrawal was valid and enforceable;
- the absence of a lawyer assisting the employer during the agreement’s signing and the alleged misunderstanding of its content were not sufficient to invalidate the agreement, in the absence of proof under Articles 1428 and following of the Civil Code;
- the failure to formally draft a subsequent smart working agreement did not undermine the binding effect of the original conciliation terms, which were sufficiently precise and had been implemented for over three years;
- article 19 of Law No. 81/2017, which allows termination of smart working, is not a mandatory rule prohibiting more favorable contractual arrangements for employees.
In addition, the Court stated that the employer could not rely on the employee’s failure to physically appear at the office as grounds for dismissal when this was not coupled with any failure in the remote performance duties. Nor was there evidence of objectively justified grounds making the smart working arrangement unfeasible.
As a result, the dismissal was deemed unlawful and the Court ordered the employer to either reinstate the employee within three days or pay an indemnity equivalent to six months’ salary, under Article 8 of Law No. 604/1966.
In light of the above, specific attention must be paid to agreements with employees regulating smart working, nowadays an increasingly widespread way of working.
