Regulating smart working in the private sector: The guidelines of the new national protocol

19 January 2022
Thanks to Giulia Conforto for collaborating on this article

On December 7, 2021, the Italian government and the trade unions signed a national protocol on smart working (also known as “agile work”) in the private sector (the “Protocol”).

In Italy, the Covid-19 pandemic has undoubtedly increased the use of remote work. As is widely acknowledged, the Italian government has provided simplified procedures that make it possible to use smart working even in the absence of an individual agreement between the parties until the end of the emergency period (i.e., March 31, 2022, at least for the moment).

Accordingly, once the emergency status ends, individual agreements between company and employee will be required.

The Italian government has therefore been working on a framework for companies that want to continue to use smart working even after the expiration of the emergency period to employ.

The Protocol supplements the legislative framework for agile working, as defined by Law no. 81/2017. Notably, the Protocol is not legally binding, but it provides fundamental principles and sets up guidelines for collective agreements on the subject, making it possible to implement smart-working in different specific contexts.


1) The individual agreement

The Protocol clarifies that smart working must be voluntary and subject to the signing of an individual agreement, without prejudice to the right of withdrawal provided therein.

That individual agreement must comply with the applicable collective agreements, as well as the Protocol.

An employee’s refusal to follow an agile modality or carry out work in accordance with it does not constitute grounds for dismissal for just cause or justified reason, nor is it relevant from a disciplinary point of view.

The Protocol also identifies the elements that an individual agreement must include, such as the duration (fixed-term or open-ended); the alternation between periods of work on and off company premises; places, if any, off company premises that may not be used for performance of work; aspects relating to work performance; work tools; and so on.

2) Organization of smart-working performance: No set working hours and the right to disconnect

Smart working is designed to provide better work-life balance or increase agility in doing a job.

Accordingly, the smart-working workday is characterized by the absence of precise working hours and by the employee’s autonomy in carrying out the service within the scope of established objectives.

However, the Protocol clarifies that smart -working performance can be divided into time slots, and in any case a disconnection period when the employee shall not perform work activity is to be identified.

The employee may request the hourly leave permits provided by collective agreements or by the law; in cases of legitimate absence (e.g., due to illness or accident ), the employees may deactivate their devices and shall not be obligated to respond to any company emails received until they return to work.

Lastly, not having a fixed work schedule or time constraints on smart working days prevents employees from working overtime and receiving the relevant extra pay.

3) Flexible workplace, but employers are responsible for employee safety

The Protocol states that the employees are free to choose the place to carry out their agile work as long as the chosen place has characteristics allowing regular execution of performance under safe and confidential conditions.

Nonetheless, during smart working, the employer remains responsible for the health and safety of the employee and must provide the worker and the R.L.S. (Worker Safety Representative) with written information describing the general and specific risks associated with smart working performance.

The agile employee has the right to protection against accidents at work and workplace health hazards. The employer must guarantee INAIL (National Institute for Insurance against Accidents at Work) insurance coverage against accidents at work and workplace health hazards, as well as protection against accidents in itinere, according to the law.

4) Work tools

The Protocol establishes that, as a rule, the employer provides the technological and IT equipment necessary for carrying out smart working activity in order to ensure that the employee has access to tools that are suitable for carrying out the work activity and permit safe access of company systems. If the parties agree instead that the employee’s personal tools are to be used, adequate security criteria and requirements must be established.

5) Equal treatment and equal opportunity

The Protocol also clarifies that a smart working employee has the same rights as employees who carry out the same duties exclusively on company premises with regard to economic and regulatory treatment and career opportunities, training initiatives, and any other opportunities for specialization and development, as well as the same forms of company contributions and benefits provided by collective bargaining.


Adoption of the Protocol certainly represents an important step in shaping a regulatory framework for agile working. Now collective bargaining, at all levels—national, territorial, and, above all, corporate—is fundamental so that endeavors to implement the duties assigned and to enact more specific sector-oriented regulation may proceed.

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