Author: Giulia Sberna – PhD candidate in Public administration and innovation for disability and social inclusion at the University of Palermo and University of Campania “L. Vanvitelli”; Visiting PhD Researcher at the School of Law and Criminology & the ALL Institute.
Research Stream: Social Structures
The new millennium has been characterised by the adoption of advanced technologies and new organisational models hat have transformed the work environment. In this new employment context, “flexibility” has become a buzz word: flexibility characterises job roles, but also the places where work is carried out, which have moved beyond the traditional confines of factories and public offices and into digital spaces, made possible by the use of the Internet and other ICT tools.
Remote working has thus become a symbol of this transformation, representing an innovative alternative to traditional organisational models. It has not only supported a better work-life balance, but has also opened up new opportunities for those who have historically faced greater barriers in accessing employment, particularly persons with disabilities. While it is not without drawbacks, remote working has provided a concrete means of overcoming mobility-related barriers and accessing job opportunities on a more equal footing, encouraging active participation in the workplace. This blog post reflects on recent Italian case law, which has begun to conceive of remote working as a typical form of reasonable accommodation. In doing so, the blog aims to offer some reflections that may spur a debate on strengths and pitfalls of remote working in other jurisdictions.
As established internationally by Article 2 of the UN Convention on the Rights of Persons with Disabilities (2006) (CRPD) and, at European level, by Article 5 of Directive 2000/78/EC, reasonable accommodation encompasses all modifications – whether to the environment or to job duties – that allow a person with a disability to work under conditions of equal opportunity. In this context, telework, smart working and remote working can be seen as appropriate and effective solutions, provided they are tailored to the specific needs of the individual worker.
The Italian Court of Cassation, in its recent judgment no. 605 of 10 January 2025, expressly recognised that remote working can indeed constitute a form of reasonable accommodation. As a result, the employer is obliged to provide it, unless they prove that such arrangement would impose an excessive or disproportionate burden on them.
The case in question concerned a worker with severe visual impairment who had requested to perform his duties remotely. The employer refused, arguing that internal company policy excluded remote working for that type of role. The Court of Cassation, after affirming that the principle of identifying reasonable accommodation to ensure equal treatment for persons with disabilities applies in the field of employment protection, considered the employer’s conduct discriminatory. In light of these considerations, the Supreme Court recognised the worker’s right to work remotely, clarifying that reasonable accommodations may be established through mutual agreement and, in cases of dispute, it is for the judge of first instance to determine the most suitable solution to protect the rights of worker with disability.
Therefore, the ruling of the Court of Cassation establishes a fundamental legal principle that may guide future disputes and contribute to strengthening the right of workers with disabilities to fair and non-discriminatory treatment. In fact, including remote working within the broad category of reasonable accommodations has the inherent effect of classifying an employer’s refusal to offer such working arrangements as a form of discrimination.
This Italian case might prove a source of inspiration for other jurisdictions. In Ireland, the employment rate of persons with disabilities is one of the lowest in Western Europe. According to reports from the National Disability Authority (NDA), many are unaware of the existence of the Reasonable Accommodation Fund, which is designed to support businesses in adopting these measures. The report “Reasonable Accommodations: Obstacles and Opportunities” describes a reality where clear internal policies are often lacking, and where concerns about costs or complex procedures discourage the implementation of inclusive measures. Yet, Irish courts had already embraced a broad notion of reasonable accommodation in the significant Nano Nagle School v. Daly (2019) decision. In that decision the Supreme Court recognised that measures such as reduced working hours, job modification, or redistribution of tasks can fall under reasonable accommodation, provided they are compatible with the effective functioning of the organisation. This approach aligns with the views expressed by the Court of Justice of the European Union in HK Danmark and subsequent case law.
At this juncture it is important to appreciate the strengths of remote work, which as EFC Remote Working Report 2021 showed, can enhance flexibility and autonomy for many people with disabilities. Yet this remote working has revealed some critical issues, including social isolation among workers with disability, reduced visibility within the organisation, limited access to assistive technologies, and the lack of adequate facilities for home-based work. Thus, it would be important to implement a working model that alternates between remote and on-site work. For example, through the creation of public and shared co-working spaces designed to encourage social interaction, collaboration among colleagues, and access to appropriate technological tools.
In conclusion, Italy has initiated a significant legal reflection on the role and pitfalls of remote working for persons with disabilities, one that is likely to influence both the European and international legal framework with the view to expanding protection for workers with disabilities.
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