Stanchi Studio Legale
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Employment & Immigration
A court recently held that an employee's dismissal had been unlawful and ordered her to be reinstated. Following her reinstatement, the employee asked her employer to pay her an indemnity in lieu of holiday and leave not enjoyed in the period between her dismissal and her reinstatement. The Supreme Court departed from its own precedents on this matter and ruled that the claim was grounded, in line with certain European Court of Justice rulings.
The Rome Labour Court has issued a decision which extends the ban on individual dismissals due to the COVID-19 pandemic to cover executives. Previously, executives' protection in the event of dismissal was provided by collective agreements. The legislative interpretation provided by this decision reinforces the doubts of constitutional legitimacy that the ban on dismissals due to the COVID-19 pandemic has raised.
Italy has ratified the International Labour Organisation Violence and Harassment Convention, which will have a significant impact on employment law. Employers will have concrete new obligations with respect to a broader range of behaviours, involving a larger number of people and situations. This will affect the regulations that employers must implement internally and their responsibility for health and safety in the workplace (and work-related situations).
Law Decree 137/2020, the so-called 'Ristori Decree', recently came into force. This article provides a summary of the relevant provisions of immediate interest relating to employment, including the suspension of dismissals, financial support available to companies and family leave relating to a child's school suspending teaching.
Due to the ongoing COVID-19 pandemic, the government has extended the ban on individual and collective redundancies due to organisational or economic reasons until the end of 2020 (Law Decree 104/2020). However, terminations can proceed in certain situations.
The European Court of Justice has ruled on a dismissed employee's right to indemnity for untaken holiday accrued during the period between their dismissal and the date of their court-ordered reinstatement. With respect to the Italian context, the prevailing case law confirmed by the Supreme Court excluded the dismissed employee's right to accrue holiday after his dismissal until the enforcement of the judicial order of reinstatement.
As Italy is dealing with the COVID-19 pandemic, the national institutions responsible for occupational safety (mainly the National Institute for Insurance against Accidents at Work and the Labour Inspectorate) have issued rules concerning health and safety in the workplace. Italian companies which have been authorised to reopen must enforce a strict set of regulations in order to safeguard the health and safety of their employees and anyone who enters their workplace during this transitional Phase 2 period.
According to case law, the Italian regulatory system allows employers to appoint private investigators to verify unlawful conduct on the part of their employees. A recent Court of Padua decision offers a useful overview of the circumstances in which this type of action is permitted.
A recent Padua Labour Court decision affirmed that the traditional concept of subordinated relationships between employers and employees should be redesigned to reflect how changes in technology are reshaping company organisation. This decision is one of the first in which an Italian labour court has considered whether the traditional concept of employment relationships is still valid or if employees' and employers' rights should be considered differently in light of technology's impact on organisations.
The posting of employees from an EU country to Italy must comply with Legislative Decree 136/2016. The law applies to companies established in EU member states which, in the context of the provision of services, post to Italy one or more employees in favour of another company, including those belonging to the same group, another production unit or another recipient, on the condition that during the posting, an employment relationship continues to exist with the posted employee.
The Supreme Court recently ruled on the scope of reinstatement protection in the event of dismissal for cause provided by Article 3 of the Jobs Act. Despite the rule providing for reinstatement to be linked to the non-existence of disputed material facts, the court considered that reinstatement should occur not only when the material facts of a case did not take place, but also when they are insignificant from a disciplinary perspective.
Supreme Court defines limits of immunity of foreign states from Italian jurisdiction in employment lawsuitsItaly | 15 May 2019
The Supreme Court recently decided a labour litigation case filed by an Italian employee of the British Council. The court affirmed the principle that the exoneration from Italian jurisdiction of foreign states and entities that, in a broad sense, hold the status of bodies of a foreign state meets a double limit in the field of labour relations for disputes concerning employment relationships unrelated to the institutional functions and the organisation of the entity and when a claim with exclusively patrimonial content is raised.
The Turin Court of Appeal recently found that Foodora riders should not be considered employees. However, the court also held that Foodora riders cannot be considered fully self-employed and instead belong to a third type of relationship between self-employment and subordinated employment. This decision sees Italy join the ongoing debate regarding the classification of gig economy operators.
The Constitutional Court recently declared Article 3 of the Jobs Act, which provides the formula to calculate damages for the unlawful dismissal of employees hired after March 2015, to be unlawful. The decision has created uncertainty for employers and reduces their ability to assess the consequences and costs associated with redundancies, which was one of the Jobs Act's benefits.
Supreme Court finds that recordings of employer-employee discussions can be used as evidence in lawsuitsItaly | 31 October 2018
The Supreme Court recently examined the use of recordings of employer-employee discussions as evidence in a lawsuit and provided a number of useful principles in this regard. For example, this type of recording can be used as evidence if at least one of the individuals involved in the recorded discussion is a party to the lawsuit and the party against whom the recording has been filed as evidence has not duly contested its actuality or content.
The Constitutional Court has deemed unlawful the provision of the Jobs Act concerning indemnity in the case of the unlawful dismissal of employees hired after March 2015. According to the court's first press release, the sole criterion of an employee's seniority provided by the act for the calculation of the indemnity is contrary to the principles of reasonableness and equality, as well as the employment rights and protection provided by Articles 4 and 35 of the Constitutional Chart.
The Supreme Court recently found that a dismissal for just cause is unlawful if the employer uses an investigator to monitor an employee's job performance. The ban on the use of investigative agencies also applies to activities carried out by employees off their employer's premises and renders investigative reports unusable unless they concern behaviour that suggests criminal activity.
The Supreme Court recently found that in the case of a dismissal of an executive due to cost reductions, the main requirement is that the company's reorganisation process must be genuine. Employers are not required to prove that they are in economic difficulty. Rather, it is enough for them to demonstrate that the employee's job will no longer exist due to organisational changes.
Supreme Court decision on use of cameras in workplace and protection of employee dignity and privacyItaly | 28 February 2018
The Supreme Court recently stated that an employer that installs a camera in its workplace to monitor an employee's activity can be found guilty of a crime under Decree-Law 196/03, even if the camera was installed to protect goods and property. The court found that the dignity and privacy of the employee in question were more worthy of protection than the economic value of corporate goods and property and that reforms in this regard introduced by the Jobs Act were inapplicable.
The Supreme Court recently found that an employee who notifies the judicial authorities of facts relating to his or her employer which constitute evidence of criminal activity cannot be dismissed for just cause. As regards the disciplinary liability of whistleblowing employees, it is insufficient for a complaint to be unfounded, as this does not prove that the complaint was slanderous.
An employee recently challenged her dismissal, claiming that she had been employed by a cooperative as a cleaner in a healthcare structure under a contract between the two parties. The healthcare structure was subsequently incorporated into another company, which decided to internalise the services performed by the cooperative and terminate the contract between the two parties. The Court of Milan declared the dismissal to be unlawful on the grounds that a transfer of undertaking had occurred.
The Supreme Court recently issued a decision concerning an employee's dismissal for just cause on the grounds of leaving the workplace without authorisation and conducting his work in a different location. The Supreme Court has repeatedly confirmed that the existence of a just cause for dismissal must be established in relation to the seriousness of the employee's conduct and the proportionality between that conduct and any resulting penalties.
A recent Supreme Court decision found that if an employee breaches internal policies regulating access to and use of a company's IT systems, he or she can be prosecuted for illegal access to an IT system under Article 615ter of the Criminal Code. The case concerned an employee who sent three emails to which he had attached a database regarding company know-how and files containing data on the company's revenue.
In a recent decision, the Supreme Court stated that in the case of a change of contractor, employees of the previous contractor are not automatically granted the right to continue their employment relationship with the new contractor, as provided for by Article 2112 of the Civil Code, which relates to the transfer of an undertaking. The case concerned the termination of a parking service contract by an Italian municipality, which had agreed a new contract with an in-house company.
A recent Supreme Court decision found that an employer can dismiss an employee for economic reasons only if he or she cannot be assigned to a different role in the company. In particular, the court affirmed that a role offered as an alternative to dismissal can require an employee to perform lower-grade tasks than previously. Therefore, the previous ban on agreements concerning the assignment of employees to lower-level roles has been relaxed.
In a recent trial court case, an employee applied for reinstatement by a new contractor – which had taken over the loading and unloading contract at an incinerator – under the rules concerning the transfer of an undertaking. The court confirmed that an employee has the right to continue an employment relationship with a new contractor under the same conditions acquired under the previous employer.
The Court of Rome recently ruled that the transfer of an undertaking is not a ground for dismissal for economic reasons when an employment relationship continues with another employer. The decision concerned a dismissal at the end of a collective dismissal procedure by Alitalia to identify redundancies in the context of the company's sale to a new company and an international partnership with Etihad Airways.
The Supreme Court recently issued three decisions regarding the validity of dismissals following disciplinary procedures and the evaluation of proportionality between the alleged conduct of employees and the decision to dismiss them. The judgments confirm that when determining the validity of dismissals there must be consistency between the employee's alleged conduct, the acts committed and the assessment of their gravity.
The Supreme Court recently issued a decision regarding Section 4 of the Workers' Statute, concerning the remote monitoring of employees through an access badge verification system. The court ruled that an unauthorised access badge radio-frequency identification system was illegal and that the access badge system in question facilitated the global monitoring of employees.
The courts recently issued two decisions regarding privacy and access to company email accounts. The first established that an employee can access employee assessments to verify whether they have been conducted according to good-faith standards. The second confirmed that access to a corporate email account need not be provided to an employee seeking reinstatement, as such an account can be used only during a working relationship.
The Supreme Court recently issued a decision in a case regarding an employee's violation of the Penal Code after he had resigned. Article 615ter of the code punishes anyone who gains unauthorised access to computer or telecommunications systems protected by security measures or who maintains access against the express or implied permission of the party that has the right to block access to it.
Data Protection Authority backs decision to suspend employee for unauthorised access to company dataItaly | 16 March 2016
An employee recently appealed to the Data Protection Authority against his employer processing personal data stored on his work computer. The computer had been seized when the employee was suspended due to alleged unauthorised access to confidential information. The authority found that the suspension was a legitimate defence against the employee's breach of the Privacy Code and the Civil Code.
The Supreme Court has issued a decision concerning workplace harassment – so-called 'mobbing' – with specific attention to the intentionality of the persecutory conduct. The case involved an employee who claimed against his employer for an injury allegedly derived from the employer having placed the employee on unemployment insurance and forcing him to take a short vacation.
The Supreme Court recently issued a decision regarding disciplinary proceedings during which the employer did not make the documents that informed the letter of reprimand available to the employee under review. The court found that the dismissal was illegitimate, as an employer must allow an employee subject to disciplinary review to examine the documents that informed the letter of reprimand if it is deemed fundamental for his or her defence.
The Supreme Court recently issued a decision that clarified a number of points regarding Section 4 of the Workers' Statute with regard to defensive monitoring of employees via work tools. The case involved the use of a Global Positioning System (GPS) to monitor the movements of an employee using a company car. Under the law, the car and its GPS fall within the scope of a work tool because they aid the performance of employment obligations.
A series of labour law reforms were recently passed by Parliament, including amendments to Section 4 of the Workers' Statute. Under the changes, the general ban on monitoring employee activity through equipment designed for that purpose has been removed. The changes have enhanced the consistency of rules that protect a company's technological assets.
The Supreme Court recently issued a decision regarding the termination of employment for objective reasons. Consistent with previous case law, the decision underlined the substantial prerequisites for early termination for economic reasons – namely, the existence of production and organisational factors which must be evaluated based on facts that were present at the time of the dismissal.
The Supreme Court recently rejected an employee's challenge of dismissal. The employee had invoked Article 4 of Act 300/1970 to complain about his employer's use of remote monitoring without employee consent. However, the court clarified that when an investigation is focused on the protection of a company's assets rather than an employee's fulfilment of obligations, it is outside the scope of the act.
The Supreme Court recently issued two decisions on employee rights in the event of a transfer of an undertaking. The first decision concerned the functional autonomy needed for transferred employees to organise and carry out work independently. The second decision examined the effects that the transfer of a branch of a business deemed to be ineffective has on employee rights.
Parliament recently approved the so-called 'Jobs Act', which instructs the government to enact within six months numerous decrees necessary to bring about significant changes to Italian labour law. Among other things, the law provides for contracts with increased protections for new employees and amends the rules governing the demotion of workers.
The Supreme Court has issued a noteworthy decision concerning workplace harassment – so-called 'mobbing' – and its prerequisite conditions. In accordance with case law, the court has identified four primary factors which must be present in order to make a workplace harassment claim, while also stressing that the employee must provide evidence of these factors in the first-instance application.
The Ministry of Labour and Social Policies has issued new guidelines in relation to the recent legislative changes introduced for fixed-term contracts, temporary work administration and apprenticeships. Among other things, the circular clarifies the method for calculating the maximum number of fixed-term contracts that an employer may conclude.
The Supreme Court has issued a noteworthy decision concerning compensation under Article 32 of Law 183/2010 for unlawful fixed-term employment contracts. This decision is particularly relevant, as it affirms that Article 32 ensures that employees hired under an unlawful fixed-term contract are entitled to a permanent employment relationship and compensation.
The Supreme Court recently issued a significant decision concerning a transfer of part of an undertaking. The Supreme Court confirmed the Court of Appeal's decision, which held that the transfer of a business branch and the related transfer of employment contracts had no effect on employees; as a result, the employment relationship with the transferor remained unchanged.
The Supreme Court recently issued a decision concerning an employee's dismissal following disciplinary proceedings that took place during the employee's sick leave. The Supreme Court took the occasion to underline the consolidated case law on the relationship between the employer's right of termination and the employee's right to sick leave.
The Supreme Court has issued its decision in a case involving a municipality that published personal data on its website relating to an employee's absence for having contracted a disease and the existence of judicial proceedings between the parties relating to alleged bullying. Among other things, the decision raises the issue of the extent of privacy protection afforded to an employee's job profile within the organisation.
In four recent decisions the Supreme Court considered employment issues arising from transfers of business. The cases involved, among other things, the dismissal of an employee following a reorganisation, the illlegitimate demotion of a group of workers transferred from one company to another and the quantification of non-pecuniary damage in case of employee demotion.
The Supreme Court recently issued a decision concerning the redundancy notice that employers must submit before laying off employees. The case concerned a company whose redundancy notice merely specified the number of redundant employees and listed their job profiles in general terms. Controversially, the company also noted the employees' eligibility for retirement in the notice.
The Supreme Court recently issued a decision that deals with two specific issues concerning employee demotion and employer 'mobbing' conduct (ie, bullying in the workplace). The decision is particularly relevant, as it excluded employer liability related to mobbing because the employee submitted no evidence of employer misconduct.
The Supreme Court recently issued an important decision that deals with two specific issues: anonymous whistleblowing and the boundaries of an employee's duty of loyalty in case of the employer's alleged illegal conduct. The decision validates the legitimacy of the whistleblowing system, allowing its use in order to collect information about the misconduct, but also underlines the system's limits.
The labour minister recently issued a circular containing practical instructions for the mandatory mediation procedure for dismissals for objective justified reason under the recent labour reform legislation. Failure to comply with these steps may be used against the employer in litigation, so companies are advised to consider them closely.
One of the most innovative changes introduced by the recent Fornero labour reform is a special streamlined procedure for cases relating to appeals against dismissals and issues of employment qualification linked to dismissals. The Milan Labour Court is now dealing with the application of this new procedure. In two recent cases brought by employees, certain procedural issues were addressed differently by judges.
Labour Minister Elsa Fornero's recent reform has introduced important changes regarding dismissals. One of the most debated aspects of the reform is Article 18 of the Workers Statute, the structure of which has been significantly revised. The new structure provides for various consequences regarding different reasons for unfair dismissal.
Recent labour reforms spearheaded by Labour Minister Elsa Fornero have introduced important changes regarding dismissal, so-called 'social safety valves' and flexible working. Among other things, dismissals are now subject to new mandatory procedures, and fixed-term employment agreements may be established with no reason given for the contract term not exceeding 12 months.
The Court of Milan has held that an employer was wrong to impose disciplinary measures on a union leader for carrying out union activities during working hours using his employer's IT systems. The decision is particularly significant because computer metadata was used as evidence to support the claim against the union leader, in an attempt to prove that he carried out union activities during working hours.
The Supreme Court recently ruled on the case of an employee who deleted a large quantity of data from the hard disk of his employer's computer and removed the back-up CD-ROMs. The court considered the criteria for the crime of malicious damage to a computer system; its findings have significant implications for employers.
The case of a bank clerk who was terminated on the basis of information uncovered through email monitoring has clarified a potentially problematic issue for employers. A Supreme Court decision addresses the nature of defensive monitoring, which is intended not to ensure that employees are carrying out their work correctly, but to detect wrongful conduct that may harm the employer's assets.
The Supreme Court has confirmed a well-established rule of case law, holding that the dismissal of an executive without notice is wrongful if the employer does not issue a reprimand letter and provide for a period in which the individual can respond in his or her defence.
A new provision has come into force whereby local and company collective agreements signed by the "comparatively most representative" trade unions will apply to all employees. Despite the benefits claimed for the change, some experts have criticised it as unclear and potentially disruptive. The employers' association Confindustria and Italy's three largest trade unions have effectively agreed to a moratorium on applying the rule.
The Supreme Court has recently confirmed the opinion of previous court decisions that employers which hire full-time employees from so-called 'workers' mobility' lists in redundancy procedures are not eligible for financial aid under Article 8 of Law 223/1991 if the new employer is a transferee in the case of a business branch lease.
In a recent case an employee who was transferred to another employer as a result of a merger claimed that the normative rules and system of remuneration provided by the transferor should continue to apply in respect of his supplementary pension scheme arrangements and health insurance.
The Supreme Court has recently re-examined the criteria to apply to redundancies where an employer has no alternative to dismissal. It held that an employer had acted lawfully in reaching an agreement with the trade unions whereby the employees to be made redundant would be chosen from among those eligible for pension benefits.
The Supreme Court has issued a report on the consequences of the invalidity of fixed-term contracts under new labour legislation. The report reaches significant conclusions on the penalties set out under the law. A separate ordinance sheds light on the constitutional uncertainty surrounding Article 32 of the law.
New legislation has amended certain key aspects of the law on challenges to dismissals and the actions that employers can take in response. Other provisions relate to the penalties that may apply when a court finds a fixed-term contract to be unlawful. The law also allows administrative authorities to certify facts and circumstances which can be deemed to constitute just cause or a justified reason for dismissal.
An employee is now entitled to a fair bonus payment by virtue of the employer's use of the employee's invention within a regime of commercial confidentiality. The recent change in the Intellectual Property Code potentially affects a vast number of professional roles, not merely those involving research, and should be considered at the start of the employment relationship and throughout its duration.
The Supreme Court has ruled as invalid a multinational company's dismissal of an employee while on secondment abroad because of the position in question was no longer required. This unprecedented decision is the first in which an Italian judge has found that for an employee seconded outside Italy, the obligation to offer alternative positions applies in respect of all other foreign premises of a multinational company.
The Supreme Court recently ruled on the circumstances in which a dismissed employee has the right to challenge his or her dismissal. The court held that postage by registered mail is sufficient to confirm delivery of the objection in order to prevent the forfeiture of the right to challenge dismissal.
A recent Supreme Court decision has established that an employee's superior can be held liable for bullying in the workplace, and for consequent economic and non-pecuniary damages, when such behaviour is intentionally damaging to the employee's professional dignity. It is also the first decision of the court that directly implements the principles of the Lisbon Treaty.
In Summer 2009 the European Court of Justice (ECJ) held that Italy had failed to fulfil its obligation under the EU Acquired Rights Directive to safeguard employees' rights in the event of redundancy procedures arising from transfers of undertakings. The government has issued amending legislation, but some of the formal ambiguities highlighted by the ECJ remain.
A Supreme Court decision has established that an employee pursuing compensation for professional damages bears the burden of proof. In itself, a demotion does not entitle a claimant to compensation for non-pecuniary damages; rather, the employee must show verifiable damage to his or her personal dignity - for example, to his or her career prospects, standard of living or personal relationships.
A line of court decisions has established that if a dismissed employee wishes to contest his or her dismissal, the employer must receive a communication contesting the dismissal within 60 days, otherwise the objection is null and void. However, two recent Supreme Court decisions mark a significant divergence from previous practice.
In implementing the principle of equal treatment for men and women in employment matters, the Supreme Court has recognized the right of an equal opportunities adviser to act as aggrieved party in criminal proceedings and to claim damages as an interested party in a case arising from collective discrimination in the workplace.
The Supreme Court has held that a sequence of disciplinary measures can be considered victimization if they are groundless, disproportionate or manifestly exaggerated and are intended to bring about the employee's resignation or dismissal. The court found that such behaviour amounts to 'mobbing' - the term commonly used in Italy to describe bullying in the workplace.
Recent decisions of the Privacy Authority and the Supreme Court emphasize that employees' personal data must be carefully managed. Employers must take particular care to comply with the rules applying to data processing and the electronic circulation of personal data.
Two Supreme Court decisions on an employer’s liability for injury in the workplace mark a departure from previous court decisions that punished employers only if they had violated standards imposed by law. Moreover, they establish that an employer cannot avoid liability simply by offering training and information.
The Supreme Court's recent decisions on 'mobbing' - a term used in Italy to describe bullying in the workplace - may give employers and legal experts cause for concern. The Civil Code requires employers to take all necessary measures to safeguard its employees' moral and physical integrity, and in certain circumstances an employer can be held liable for mobbing if it merely tolerates misconduct by its employees.
In a recent case a supermarket verified the illicit behaviour of an employee using a private detective agency. The Supreme Court applied the guidelines which it had previously established for the interpretation of Article 2 of Law 300/70, which defines the lawful limits for monitoring in order to protect company property.
A recent Supreme Court decision on deaths in the workplace has confirmed the principles that govern the right of a deceased employee's heirs to pursue compensation claims against employers. In order for relatives to seek compensation in their own right for physical injury or damage other than to property, they must produce objective evidence confirmed by medical reports.
The Supreme Court has upheld a claim brought by a company manager concerning the reduction of remuneration under a new collective agreement under Article 2103 of the Civil Code. Previous decisions have established that Article 2103 protects an employee from a variation in his or her job position that results in a reduction in the remuneration agreed in his or her contract.
An employee dismissed for fraudulent misconduct appealed on the grounds of late notification of the disciplinary procedure. The law requires that such notification be timely, but the Supreme Court reaffirmed that this criterion is relative and depends, among other things, on the complexity of the company's structure and the need to evaluate the circumstances of the dismissal.
In a recent case the Supreme Court followed established legal principles and clarified that if an employee engages in other work while on sick leave, his or her dismissal is justified on the grounds that such action breaches his or her obligation of diligence and loyalty in the employment relationship.
The government has recently approved an act which consolidates legislation on workplace safety. It offers an exhaustive explanation of employers' responsibilities in terms of delegating responsibility for occupational safety and makes it harder to avoid a prison sentence for health and safety violations.
A new law requires resigning employees of all levels to notify their employer in writing on a form supplied by the Department of Welfare or obtained from its website. The new legislation does not cover termination by mutual consent and existing requirements relating to termination with due notice and termination with just cause continue to apply.