11.1 Introduction: Gender Issues and Telework
Women have traditionally been, and continue to be, the ones who have stayed at home engaged in ‘industrial homework’ (ILO, 2021)Footnote 1. However, until relatively recently, in many countries it was men who engaged more regularly in ‘telework’ (Eurofound ILO, 2017; Eurofound 2020)Footnote 2 – a practice of organizing work that predominated among managers and workers in the technology industries and, more generally, in knowledge-based occupations – in what was a clear reflection of the gendered division of labour in the home and the job market. However, the predominance of male teleworkers might also be explained by masculine patterns of work time use and, indeed, teleworking is still conceived as a way of prolonging the working day at home (Figure 11.1).
Figure 11.1 Employed persons working from home as a percentage of the total employment
Figure 11.1Long description
The vertical axis represents the range of percentages from 0 to 20. The horizontal axis represents the age groups: 15 through 64 years and 65 + years. The percentage of women is higher than men for the 15 through 64 age group, at 10.8% and 9.6%, respectively. The percentage of men is slightly higher than women for the 65 + age group, at 18% and 17.3%, respectively.
Coinciding with the outbreak of the COVID-19 pandemic and fuelled by the development of new technologies, teleworking has expanded into other more traditional sectorsFootnote 3, some of them heavily feminized, including financial services and education, and, above all, the public sectorFootnote 4. Currently, in Europe, more women (24%) than men (21%) work from home (Eurofound 2022bFootnote 5), with women tending to concentrate in potentially ‘teleworkable’ occupational sectorsFootnote 6.
And yet, the gender divide in teleworking persists, with women teleworkers more likely to be engaged in home-based than in ICT-mobile work, where achieving work–life balance is usually more difficult (Eurofound and ILO 2017).
Telework presents two quite distinct faces as regards working time: in general, the statistics associate telework with the intensification of work and with longer, more irregular work schedules; yet, at the same time – and this particular characteristic is directly influenced by European regulations and the EU Framework Agreement on Telework – telework can constitute a working-time arrangement that facilitates a better reconciliation of work and family life, provided it is promoted in favour of workers’ interests. Yet, when seeking to determine whether teleworking has a positive or negative impact on work–life balance (be it by means of statistics or qualitative studies), the outcomes are clearly ambivalent. Indeed, the extant literature examining the implications of teleworking for gender equality provides a somewhat surprising conclusion, but one that should be kept very much in mind: and, that is, that teleworking in itself is no guarantee of co-responsibility or the transformation of gender roles. On the contrary, due to the very nature of teleworking, but at the same time owing to business practices and prevailing social stereotypes, there is a risk that it is perceived as the more ‘appropriate’ working arrangement for women, in a way that perpetuates gender roles and, even, widens the labour gap. To address this danger, socio-economic and cultural alliances, policies and regulations must all row in the same direction and, in their wake, take steps to eliminate all patriarchal structures and systemic discriminationFootnote 7, in fulfilment of their gender dutyFootnote 8.
This study is based on the premise that telework, in common with other forms of the flexible organization of working time, cannot be considered gender blind, given its very strong impact on women. Indeed, emerging from this same premise is the idea, upheld in other doctrinal worksFootnote 9, that the greater autonomy in relation to working time offered by teleworking – and which might facilitate a better reconciliation of work and family life – has different ramifications for men and women. In general, for women teleworkers, the degree of interference – the porosity – of their working time on their personal lives is greater than it is for menFootnote 10. Today, it can be argued that the vast majority of women who engage in telework – and this is something that was made more than evident during the pandemic – continue having to put in a double shift, but that this, instead of being something that is undertaken simultaneously, has become more episodic or intermittent in nature.
In what follows, I examine the impact that labour legislation and business practices of so-called ‘indecent’ working time have on women and explore the issues to which teleworking gives rise in relation to working time and work–life balance. Additionally, and with the focus more firmly on business practices, I address the opportunities afforded by telework as a working-time arrangement and the possible penalties that women teleworkers may have to face. Finally, in an effort at preventing or reversing these inequalities, I undertake an assessment of the guarantees and protections provided by the European regulatory framework and of best practices in European transnational collective bargaining, where the lynchpins of these guarantees are the principles of voluntariness and non-discrimination, as well as respect for fundamental rightsFootnote 11.
11.2 Working Time Flexibility Policies and Gender Equality
The social organization of working time is becoming less standardized, and the synchronicity of work and leisure has gradually disintegratedFootnote 12. Today, various economic, technological and cultural factors influence the coexistence of more polarized, individualized patterns of working time that increasingly differ from those of the standard working modelFootnote 13. In keeping with this trend, telework makes it easier for firms to impose increasingly diverse, irregular and unpredictable working hours on their employees.
In response to the increasing gaps that have emerged in working time and which put workers’ health at risk, there is a clear need to promote ‘decent’ working time, a model that is closely aligned with respect for human rights, gender equality and sustainable economic growth (ILO, 2007Footnote 14).
The regulation of decent working time is essential for achieving real equality for women. But it is evident, even in the case of formal employment, that business practices are failing – to varying degrees depending on the sector and the legal and institutional framework of each country – to comply with working day regulations. At the same time as new reconciliation measures emerge in legislation and collective bargaining, labour reforms have increased the flexibility of working conditions to adapt to business interests, so that time reserved for personal and reproductive life is ignored, and the male breadwinner norm and gender-blindness prevailFootnote 15.
And this is because the standard regulation of the working day, while fixing limits on maximum hours of work and minimum rest periods and restricting the use of overtime, offers firms multiple options for flexibilityFootnote 16. That is, specific norms serve to regulate certain groups and provide for notable elements of flexibility that give firms considerable leeway in determining work schedules and working hours. This is the case, for example, of Spanish regulation, which allows the irregular distribution of working hours throughout the year, their substantial modification at the behest of the employer, and the flexibilization of the overtime regime or the working hours of part-time workers. As Rubery et al. (Reference Rubery, Smith and Fagan1998) point outFootnote 17, different working-time regimes result in different working-time practices, since the norms act to ‘limit or extend variations in working hours for full-timers, promote or discourage part-time work and unsocial hours working, and influence the terms and conditions under which overtime, unsocial hours or atypical work contracts are undertaken’. And, in turn, such norms impact the degree of gender inequality in labour relations.
Thus, European legislative policies have tended to push the general and collective reduction of working hours into the background, preferring to promote flexible solutions in the form, among others, of part-time work and reductions in working hours. Women more typically are in jobs with shorter working hours but at the expense of greater corporate control in the distribution of their working hours.
All these legislative policies and business practices end up imposing gender inequalities in the workplace, insofar as they facilitate the expulsion of women from those activities whose conditions are incompatible with work–life balance, aggravate psychosocial health problems derived from having to put in a double shift and, ultimately, increase gender labour segregation and widen the labour gap.
In general, doctrinal proposals in favour of decent working time from a gender perspectiveFootnote 18 agree in advocating the introduction of the 35-hour working week, limiting the recourse to overtime, ensuring greater compliance from firms with regulations governing working time, and granting workers greater power in how they wish to use their working time in terms, for example, of teleworking or other working-time arrangements.
11.3 Emerging Issues in Working Time and Telework
As with traditional home work, in the case of telework – especially that which is carried out full time – only its results are visible, while the time spent in achieving these results goes largely ignored. Yet as work and its associated salary tend to be measured in terms of resultsFootnote 19, actual working time is ‘left out’ or excluded from the employment contract and ceases to be an immediate object of that agreementFootnote 20.
When working time is deemed irrelevant in an employment contract, any request for a reduction in, or a redistribution of, working hours loses all relevance and the primary concern becomes the workload. This means that, more often than not, the worker has to put in more hours to achieve the expected results.
The greater potential for enhanced connectivity and mobility offered by new technologies means that the boundaries between the time dedicated to personal life and work are much fuzzier and more permeable. Moreover, the emergence of new technologies and hybrid ways of working trigger new debates about the organization, calculation and control of working timeFootnote 21. For example, the European Court of JusticeFootnote 22 holds that the degree to which the employer’s work demands affect the employee’s private life should be assessed on a case-by-case basis, so as to determine whether so-called ‘stand-by time’ should be counted as working time. This way of measuring working time, outside of normal working hours, is novel because it takes into account a series of criteria to assess the true autonomyFootnote 23 of the employee to use the time dedicated to his or her own interests.
Indeed, as far as teleworking is concerned, not only do we need to consider the relative merits of physical and virtual work environments, but we also have to evaluate and establish limits on a worker’s availability and connectivity, regulating working hours by exercising the so-called right to digital disconnection. And, at the same time, the ways of carrying out and organizing remote work have to take into consideration synchronous and asynchronous working time in virtual settings.
This overlapping of work and personal time, together with the intensification of work that results in the simultaneous conducting of multiple tasks and the possibility of the fragmentation of working time, can have a spillover effect on a teleworker’s personal and work life but also on their health.
In this regard, it is worth stressing that the legal or conventional limits of general labour regulations should also be applied to teleworkers, in their capacity as wage-earners, since teleworking is a specific mode of work organization. Indeed, teleworking does not determine the type of employment contract signed by the teleworker or the legal regime applicable to the employment relationship.
What, however, amounts to a quite distinct issue is that, within the legal or conventional limits of the working day, those individuals that telework can enjoy complete freedom to organize their working schedules, as is expressly recognized, for example, by the Italian law on lavoro agile, literally, ‘agile’ or smart workingFootnote 24. Yet, teleworking cannot mean that workers forego their work breaks and relinquish their reconciliation rights since this would be tantamount to an illegal, if not discriminatory, waiver of rights.
Even so, the invisibility of working time increases the risk of a worker having to take on unpaid overtime, so to counter this it is important to establish two types of limits: those of an ex ante nature, that is, fixing, by means of collective bargaining or by way of the employment contract, the number of working and non-working hours and the right to digital disconnection; and, those of an a posteriori nature, that is, the obligation that firms have to control and record working hours. In this regard, regulatory frameworks are key in the working-time regime, influencing the degree of flexibility and autonomy that workers have with respect to their hours of work and the organization of their working schedules.
11.4 Telework and Work–Life Balance
The adoption of telework has been both a curse and blessing for a worker’s efforts to strike a good balance between work and personal life. In its favour, many teleworkers report that it means they are better able to organize their personal time. According to a Eurofound survey, two-thirds of European workers said they would like to adopt a hybrid form of teleworkingFootnote 25.
Those who work from home save on commuting time and enjoy greater autonomy, being able to decide how, when and where they work. This advantage is especially evident in the management of their working time as it facilitates the adaptation of the working day to their personal needs. It is in this sense, as we shall see below, that the European Work-Life Balance Directive considers telework and the adaptation of the working schedule to a worker’s personal needs and preferences the rights of all.
And yet, the implementation of telework is not without its drawbacks: numerous international reports associate telework with widespread practices of unpaid overtime and the blurring of boundaries between working hours and periods of restFootnote 26 (Eurofound and ILO, 2017).
At the individual level, sociologists and labour economists have identified an ‘autonomy paradox’ (Rodríguez Modroño and López-Igual, Reference Rodríguez-Modroño and López-Igual2021;Footnote 27 Tomei, Reference Tomei2021Footnote 28; Eurofound, 2020): workers dispose of greater flexibility to organize themselves but, at the same time, teleworking can lead to greater work demands, an intensification of working hours and, in general, to the greater immediacy or constant availability of workers that blurs the separation between personal life and work. Thus, workers are presented with an informal or unstructured flexibilityFootnote 29 which can lead to greater family–work conflicts, as well as stress-related health problems and greater exposure to psychosocial risks.
This trend is, in part, attributable to those technologies that today facilitate more flexible working schedules and workdays, but the weight of the regulatory framework, employment status and the culture of the specific business/sector concerned cannot be ignored. Thus, overtime is more common in labour sectors with poorly regulated working conditions and unstructured working hours.Footnote 30 In contrast, in professional sectors or occupations where working conditions are strictly regulated, both by legislation and by collective bargaining, the advantages of the autonomy afforded by teleworking are more evident.
And yet, long working hours are often the result of the fact that among teleworkers there is a preponderance of professionals and managers who prolong their hours outside the agreed work schedule. Another common practice, in this case among women, is that of working during their periods of personal rest because in this way they are better able to reconcile their family and work responsibilities.
Finally, a gender perspective reveals the possible penalties associated with telework as far as women are concerned. The experience of the pandemic highlighted the fact that enforced teleworking contributed to perpetuating traditional gender roles, insofar as it was women who had to shoulder most of the domestic work and childcare duties during lockdown. Yet, clearly, the origin of these inequalities can be found in the patriarchal organization of society, and they are not solely attributable to telework.
In studies of the impact of teleworking on work–life balance, such as that conducted more than two decades ago by Sullivan and LewisFootnote 31, it was concluded that this work practice can simultaneously lead to results that are mutually exclusive. Thus, telework may equally be an opportunity to involve both parents more in family responsibilities or these responsibilities may fall even more heavily on women teleworkers, reinforcing traditional roles. Indeed, some studies identify different uses of unpaid time by women and men teleworkers: the latter are reported to dedicate more time to childcare activities, while the former dedicate more time to domestic dutiesFootnote 32. It is found that women with children tend to fragment their working time more so as to be better able to combine their work with their family responsibilities. In this way, however, their working time ends up interfering more in their personal livesFootnote 33. These qualitative studies show, therefore, that the traditional double shifts – most often assumed by women – persist in teleworking relationships, but that they have now become more intermittent, taking place within the home, and more often than not occurring at times that coincide with those of social rest.
Leaving to one side the teleworking that emerged during the pandemic – given its exceptional and enforced nature – this practice can be considered neither a neutral nor a gender-blind form of organization: it is not neutral because it brings paid work into the domestic sphere, a traditionally feminine domain where productive and reproductive spaces overlap, and because those who work from home are invisible to the firm, and so they run the risk that their labour rights (as regards occupational health and the right to rest) and their professional rights (as regards training and promotion) are ignored. Likewise, the gender dimension of the mental health risks associated with teleworking should not be overlooked. More specifically, the situations of stress and isolation experienced by women teleworkers, attributable to the difficulties they face in disconnecting from work and the overload of intermittent double shifts, need to be carefully assessed.
Finally, as far as psychosocial and gender risks are concerned, it is worth mentioning the need to prevent harassment, including that of a sexual nature, in digital media spaces, and to protect female workers from gender violence.
11.5 Telework as a Gendered Working-Time Arrangement
In the business environment, flexible work agreements should seek to emphasize the promotion of worker autonomy as far as the organization of their work is concerned, giving them greater leeway to take decisions about how they use their time. In fact, many companies, which in the wake of the pandemic adopted hybrid teleworking, report lower rates of absenteeism and a fall in requests form employees to reduce the number of hours worked and to work part-timeFootnote 34. Although these data have yet to be studied in greater depth, they seem to indicate that remote working promotes a better work–life balance and can facilitate the employment transitions of older workers towards retirementFootnote 35.
Unlike other options for achieving reconciliation that imply a reduction in working time or taking a leave of absence, the adoption of teleworking does not mean working fewer hours nor does it increase the possibilities of job abandonment. Teleworking, compared to other modes of conciliation, is not based on leave of absence rights and can serve as a suitable alternative to other modes that tend to penalize the worker more.
In principle, opting for telework should not mean that the worker has to waive any part of their salary, at least not immediately. For example, some studies show that being able to opt for a combination of flexitime and telework has allowed women who work part-time to increase their hours of dedicationFootnote 36. It has also allowed workers, who have recently become mothers, to avoid the labour penalties typically associated with motherhoodFootnote 37.
However, as with other measures of workplace conciliation, certain business practices and associated stereotypes can lead to teleworking becoming seen as the ‘mommy track’Footnote 38, chosen above all by women, so that it becomes another manifestation of the so-called flexibility stigmaFootnote 39, linked to the exercise of motherhood and childcare.
This flexibility stigma can be especially evident when companies do not opt to implement systems of teleworking across the board and make them accessible to all workers, but rather they only authorize them on justified grounds and, only then, in exceptional casesFootnote 40. Such decisions serve to promote gender gaps within a company, in response to which, it is best to collectively negotiate a series of best practices for the regulation of telework. This is discussed in detail in the section that follows.
11.6 Regulatory Frameworks Guaranteeing Rights and Best Practices in the European Social Dialogue
With the emergence of new technologies and the strengthening of the digital economy, new norms governing the workplace are needed that guarantee decent work and which respect fundamental rights. However, the solution does not necessarily involve the creation of specific regulations for new categories of workers, but rather the application of labour rights that recognize these new realities and offer guarantees that address emerging issues in the digital field that have a direct impact on fundamental rightsFootnote 41.
As discussed earlier, teleworkers are not in any danger of falling into a legal vacuum given that they are protected by general labour regulations. This is the case for example of their rights with regard to working time and their right to equality and non-discrimination as recognized in European directives. The Working Time Directive 2003/88/EC which, in addition to limiting the length of the working day and establishing minimum daily rest periods, regulates two aspects of particular relevance for telework: first, the consideration of effective working time, outside the firm’s facilities, when the teleworker is available and reachable by their employer;Footnote 42 and, second, following the judgment of the European Court of Justice in 2019Footnote 43, the requirement that firms set up a system enabling the duration of time worked each day by each worker to be measured.
Indeed, from the beginning of the employment relationship, Directive 2019/1152, on Transparent and Predictable Working Conditions, recognizes the right of workers to know in advance and in detail their working conditions, including the length of their standard working day or week, even in those labour relations where the work patterns are ‘entirely or mostly unpredictable’ (Art. 4)Footnote 44. However, regulation at the European level of the right to digital disconnection, as proposed by the European Parliament and as negotiated by the social agents in their revision of the EU Framework Agreement, remains pending.
As far as conciliation is concerned, the Work-Life Balance Directive 2019/1158 recognizes the individual right of workers ‘to request flexible working arrangements for caring purposes’, arrangements that include remote work (Art. 9).
EU directives concerning equality and discrimination on grounds of gender and other factors, in addition to prohibiting discrimination and establishing measures to guarantee the effectiveness of rights, call on different stakeholders to implement preventive policies. One of the advantages of teleworking is that it can be a resource for the adoption of business diversity policies, facilitating access to employment for the disabled or those with mobility problems due to health, age, etc. Although the latter opt in the main for remote working, firms are obliged, in accordance with international and European regulations, to guarantee access for the disabled to the workplace, making reasonable modifications to their physical spaces and, in the same vein, they are required to evaluate all job posts in accordance with the personal characteristics of their workers.
Moreover, the transfer of the principles of voluntariness and non-discrimination in teleworking to the regulatory frameworks of European countries – by means of the European Framework Agreement on Telework – is critical in defending fundamental labour rights. Thus, the principle of voluntariness prohibits employers from unilaterally imposing telework or, equally, from prohibiting it, and this voluntariness is required at the individual level, and is compatible with its collective implementation. However, the principle of voluntariness becomes somewhat blurred when telework forms part of the initial job description.
The principle of non-discrimination between workers who work remotely and those that work onsite is a basic guarantee of compliance with the rest of a worker’s rights. Based on this principle, firms are required to employ objective and transparent criteria for offering access to telework and it is prohibited to establish conditions that are more detrimental or which give a less favourable treatment to remote workers.
Collective bargaining is critical for the implementation of teleworking, even in those countries where specific regulations govern the practice. In what follows, I provide a summary of proposals regarding best practices as identified by the European Trade Union Confederation (ETUC) and as contained in European cross-sectoral and sectoral agreements on teleworkFootnote 45, focusing specifically on matters of working time and gender equality.
Although organization of work is considered a classic managerial prerogativeFootnote 46, European sectoral agreements insist on the importance of its negotiated implementation in firms. In this sense, telework is part of the firm’s culture as far as its labour relations are concerned and, as such, firms are advised to understand it as an inclusive, co-responsible formula, and as one that is compatible with other measures for reconciling family and work life.
The recommendations insist on the negotiated implementation of hybrid forms of teleworking. For this reason, it is important to establish the frequency and the proportion of the working time that is to be completed remotely and, above all, what jobs are to be carried out in this mode and who has the possibility of working from home and – if it is a temporary option – what situations justify telework. As the EU Telecom Social Partners’ Guidelines on Remote Work point out, to avoid gender-based segregation, it is essential to negotiate inclusive access to teleworking for all workers, whenever this is technically possible and to ensure that it is not only certain groups of workers that are able to engage in remote working.
In terms of working time, as we have seen, the autonomy of teleworkers should be facilitated, respecting at all times their work days and working schedules, as well as their right to digital disconnection. A key aspect to take into account here, especially when work is results-driven, is to reach an agreement on workloads, ‘which need to be identified and evaluated jointly’Footnote 47.
In addition, the calculation of overtime has to be agreed to, on the understanding that remuneration for these extra hours should be the same as for the overtime performed in the physical working environment. Moreover, time spent on-call or standby should be treated as working time. An example of this is provided by the EU Telecom Social Partners’ Guidelines on Remote Work, which states that ‘remote on-call duty will be governed by the same rules as if performed by employees using office workplaces, including a possible on-call or standby allowance’. Likewise, teleworkers that have requested a leave of absence should be substituted by other workers, in the same circumstances as worksite-based employees.
The role of worker’s representatives to ensure the equality of teleworkers is critical and, in this regard, a firm’s equality plan, as a negotiated instrument, makes it possible to detect, prevent and cease gender-based segregation in telework, including any possible disparities in matters of remuneration, training or promotion, as well as any possible penalties resulting from remote working. An additional aspect that needs to be taken into consideration is the incorporation in harassment protocols of steps to prevent digital violence, as well as the provision of support and the obligation to guarantee a safe work environment for victims of gender violence, taking into account the particular circumstances of teleworkingFootnote 48.
In short, the implementation of teleworking, as a mode that is respectful of decent work and of a worker’s fundamental rights, needs to be firmly anchored in regulatory and institutional frameworks and in collective bargaining at a range of levels, which seek to promote equality and diversity in firms in a transversal and transparent fashion and in adherence with the principle of co-responsibility.
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