Andrea Nicolò Stanchi
Updates
Employment & Immigration
Supreme Court finds that recordings of employer-employee discussions can be used as evidence in lawsuits
Italy | 31 October 2018The 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.
Supreme Court finds dismissal unlawful due to use of investigator to monitor job performance
Italy | 18 July 2018The 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.
Employees can be dismissed if job is eliminated in company reorganisation
Italy | 09 May 2018The 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 privacy
Italy | 28 February 2018The 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.
Supreme Court finds that whistleblowers cannot be dismissed for just cause
Italy | 20 December 2017The 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.
Employee challenges dismissal following transfer of undertaking
Italy | 18 October 2017An 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.
Supreme Court decides on dismissal of employee who left workplace without authorisation
Italy | 09 August 2017The 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.
Supreme Court overturns Employment Tribunal decision regarding employee breach of company IT policy
Italy | 17 May 2017A 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.
Supreme Court finds that employees not granted right to continue employment with new contractor
Italy | 08 March 2017In 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.
Supreme Court rules on dismissal for economic reasons
Italy | 21 December 2016A 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.
Court rules on transfer of undertaking and change of contractor
Italy | 02 November 2016In 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.
Transfer of undertaking for financial reasons not ground for dismissal
Italy | 24 August 2016The 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.
Recent Supreme Court decisions on validity of dismissals
Italy | 29 June 2016The 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.
Supreme Court decision on monitoring employee through access badge system
Italy | 08 June 2016The 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.
Privacy, employee assessments and email
Italy | 11 May 2016The 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.
Unauthorised access of computer system by former employee
Italy | 13 April 2016The 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 data
Italy | 16 March 2016An 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.
Mobbing claims: persecutory conduct must be intentional
Italy | 27 January 2016The 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.
Disciplinary proceedings and access to company documents
Italy | 16 December 2015The 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.
Defensive monitoring of employees through GPS
Italy | 09 December 2015The 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.
First impressions of recent labour law reforms
Italy | 04 November 2015A 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.
Court rules on termination of employment for objective reasons
Italy | 09 September 2015The 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.
Court rejects challenge of dismissal based on unauthorised remote monitoring
Italy | 01 July 2015The 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.
Court rules on employee rights in event of branch transfer
Italy | 13 May 2015The 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.
Jobs Act ushers in labour reforms
Italy | 28 January 2015Parliament 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.
Supreme Court rules on workplace harassment conditions
Italy | 26 November 2014The 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.
Labour ministry clarifies new rules on fixed-term contracts and apprenticeships
Italy | 15 October 2014The 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.
Supreme Court rules on illegitimate fixed-term contract and compensation
Italy | 27 August 2014The 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.
OnDemand: Bring your own device
Italy | 04 June 2014This week Stanchi Studio Legale outlines the key points that employers should consider before introducing a 'bring your own device' policy in Italy. Chief among these are the need to conclude specific agreements with trade unions or seek authorisation from the Territorial Directorate of Employment, and the need to respect the concept of the employee's 'internet environment'.
Court clarifies status of employment contracts in transfer of business branch
Italy | 28 May 2014The 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.
Supreme Court rules on disciplinary proceedings during sick leave
Italy | 05 March 2014The 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.
Supreme Court rules on protection of employee data
Italy | 20 November 2013The 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.
Supreme Court considers employee rights in transfer of business
Italy | 16 October 2013In 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.
Supreme Court clarifies specifics of redundancy notices
Italy | 31 July 2013The 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.
Supreme Court rules on demotion and excessive workload
Italy | 24 July 2013The 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.
Supreme Court rules on whistleblowing and its boundaries
Italy | 15 May 2013The 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.
Ministry clarifies mediation procedure for dismissals for objective justified reason
Italy | 20 February 2013The 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.
Milan court adopts different approaches to new dismissal appeal procedure
Italy | 12 December 2012One 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.
Fornero labour reform: dismissal
Italy | 17 October 2012Labour 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.
Fornero labour reform at a glance
Italy | 25 July 2012Recent 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.
Use of metadata for email monitoring in union activity case
Italy | 30 May 2012The 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.
Supreme Court rules on employee's malicious damage to IT systems
Italy | 21 March 2012The 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.
Supreme Court rules on monitoring workplace emails
Italy | 14 March 2012The 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.
Application of procedural guarantees to executive's dismissal
Italy | 15 February 2012The 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.
New provisions on company collective agreements under fire
Italy | 19 October 2011A 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.
Business branch leases and hiring of employees
Italy | 28 September 2011The 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.
Supreme Court on collective agreements and transfer of undertakings
Italy | 13 July 2011In 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.
Supreme Court: dismissal on basis of pension eligibility can be lawful
Italy | 15 June 2011The 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.
Supreme Court guidance on new fixed-term contract rules
Italy | 16 February 2011The 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 law sets stricter timeframe for challenges to dismissals
Italy | 19 January 2011New 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.
New rules on bonus payments for employee inventions
Italy | 20 October 2010An 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.
International secondment and dismissal: a multinational's duty of repechage
Italy | 11 August 2010The 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.
Challenging dismissal: serving opposition by post
Italy | 23 June 2010The 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.
Supreme Court rules on workplace bullying and the Lisbon Treaty
Italy | 28 April 2010A 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.
Transfer of undertakings: Italy finally complies with EU Acquired Rights Directive
Italy | 17 February 2010In 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.
Demotion and Compensation for Non-pecuniary Damages: Claimant's Burden of Proof
Italy | 04 November 2009A 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.
Supreme Court to Reconsider Timeframe for Contesting Dismissal
Italy | 17 June 2009A 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.
Discrimination and Harassment: The Role of the Equal Opportunities Adviser
Italy | 03 June 2009In 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.
Can Constructive Dismissal Amount to 'Mobbing'?
Italy | 20 May 2009The 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.
Privacy Authority Rulings on an Employee's Right to Access Personal Data
Italy | 13 May 2009Recent 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.
Stricter Supreme Court Rulings on Liability for Injury in the Workplace
Italy | 14 January 2009Two 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.
Supreme Court Rulings on 'Mobbing' and Employers' Liability
Italy | 29 October 2008The 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.
Supreme Court Rules on Monitoring in the Workplace
Italy | 03 September 2008In 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.
Compensation for Workplace Deaths
Italy | 27 August 2008A 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.
When Can an Employer Reduce a Manager's Remuneration?
Italy | 13 August 2008The 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.
Supreme Court Rules on Timely Notification of Disciplinary Procedure
Italy | 11 June 2008An 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.
Dismissal for Working During Sick Leave
Italy | 28 May 2008In 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.
Consolidated Workplace Safety Act: Clearer Rules on Delegation and Stricter Penalties
Italy | 23 April 2008The 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.
Employees Must Resign in Writing
Italy | 05 March 2008A 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.
