Smart working: why health and safety at work remain an employer’s responsibility

Working outside company premises does not reduce the employer’s obligations. Information notices, training and risk management continue to be central elements in the protection of workers.

In recent years, smart working has moved from being an emergency tool to an ordinary way of organising work.

Many companies have introduced agile working as a flexible organisational solution, often perceiving it as a method that reduces the logistical and operational constraints of work performance.

This approach, however, is only partially correct.

From a legal perspective, smart working does not lessen the employer’s obligations regarding the protection of workers’ health and safety.

On the contrary, the externalisation of the workplace may make risk management more complex.

In employment litigation and inspection practice, one recurring element frequently emerges: many companies have adopted smart working without genuinely integrating this working method into their health and safety management system.

When an accident or dispute occurs, these organisational gaps become the company’s main point of vulnerability.

Smart working within the regulatory framework

Agile working is mainly governed by Law No. 81 of 22 May 2017, which sets out its general principles.

Pursuant to Article 18 of Law No. 81/2017, agile working consists of a method of performing an employment relationship characterised by:

• the absence of a fixed workplace;
• the organisation of work by objectives;
• the use of technological tools.

Agile working is activated through an individual agreement between employer and employee, governing the methods of performance, working time and the tools used.

However, the legislation on agile working does not replace the general rules on health and safety at work.

The provisions of Legislative Decree No. 81 of 9 April 2008 therefore continue to apply, requiring the employer to ensure workers’ safety in every method of performance of work.

The most common mistake: treating smart working as an activity “outside company control”

Many companies believe that the performance of work outside company premises reduces the employer’s liability in matters of health and safety.

This is a legally incorrect assumption.

The legislation on agile working expressly provides that the employer remains responsible for the worker’s safety even when the work is performed outside the company.

In litigation, this interpretation is now well established.

This means that an accident occurring during the performance of smart working activities may still give rise to employer liability if a deficiency in risk management emerges.

The risk information notice in smart working

One of the main tools provided for by the legislation is the risk information notice.

Article 22 of Law No. 81/2017 provides that the employer must deliver to the worker and to the Workers’ Safety Representative a document identifying:

• the general risks connected with the work activity;
• the specific risks connected with the performance of work in agile working mode.

In company practice, this document is often prepared as a standard template.

This choice may prove problematic.

In the event of inspections or litigation, a generic or standardised information notice may be considered insufficient in light of the specific features of the activity performed.

Ergonomic risk and the use of display screen equipment

One of the main risks in smart working concerns the prolonged use of display screen equipment.

Improvised home workstations, non-ergonomic seating and inadequate lighting may cause musculoskeletal problems and visual fatigue.

From a legal perspective, the issue does not concern only the organisation of the workstation.

The central question is whether the company has adopted adequate preventive measures to inform and train the worker on the risks connected with the work activity.

In inspection or judicial proceedings, this assessment plays a decisive role.

Worker training and risk prevention

A further aspect that is often overlooked concerns the training of smart working employees.

Companies tend to regard health and safety training as an obligation already fulfilled through the courses required under Legislative Decree No. 81/2008.

However, agile working introduces different organisational and operational risks.

The main risks include:

• management of working time;
• professional isolation;
• work-related stress;
• cybersecurity and data protection.

Inadequate training on these aspects may become a critical element in litigation.

The issue of company policies on agile working

Many companies have introduced smart working through individual agreements with employees.

This solution complies with the law, but may be insufficient from an organisational standpoint.

In managing legal risk, it is advisable to supplement individual agreements with structured company policies regulating in a uniform manner:

• methods of use of IT tools;
• safety of workstations;
• the right to disconnect;
• management of cybersecurity incidents.

The absence of clear company rules may generate interpretative uncertainties in the event of disputes.

Smart working as an organisational risk

From a legal perspective, smart working is not merely a method of organising work.

It also constitutes an organisational risk factor.

When work is performed outside company premises, the risk prevention system must adapt to a more complex and less controllable environment.

Companies that do not integrate smart working into their health and safety management system expose the organisation to potential liability.

Conclusions

Smart working is now a stable component of work organisation.

Its widespread use, however, requires more careful management of the health and safety obligations imposed by law.

Experience in employment litigation shows that many disputes arise not from the harmful event itself, but from organisational gaps in risk management.

For companies, smart working should therefore not be regarded merely as a tool of operational flexibility.

It should be addressed as a matter of legal risk management.