Choice, workplace flexibility and care needs in the digital age: a comparison between the German and Italian legal approaches

The aim of this paper is twofold: to highlight the potential and limitations of the new right to request flexible working arrangements for caring purposes, as established in Directive no. 2019/1158, and to consider, through an overview of EU law, whether and to what extent this right can be interpreted in a manner that truly favours the interests of workers with care-related responsibilities over those of employers. The paper analyses some examples of approaches taken regarding the implementation of the right to request flexible working arrangements in two different jurisdictions, such as Germany and Italy and compares the transposing choices made in the two different legal contexts. The author argues, also in light of this investigation, that the potential of the duty to provide flexible working arrangements could be, to a certain extent, enhanced through the application of the prohibition of indirect discrimination, from which a sort of duty of accommodation could be inferred. The duty to provide flexible working arrangements could constitute the procedural tool to apply and enhance the proportionality test and reasonable accommodation.