Supreme Court rules on demotion and excessive workload

On May 23 2013 the Supreme Court issued a decision (12725) that deals with two specific issues concerning employee demotion and employer 'mobbing' conduct (ie, bullying in the workplace).

The case involved a manager whose job duties were changed because of the company's reorganisation and who claimed employer liability for an injury that he alleged was related to the employer's misconduct. In particular, the manager accused the employer of mobbing conduct and claimed that the injury derived from an excessive workload imposed by the employer.

The court held that the employer could change the manager's tasks if doing so was based on a general change in company organisation because of business reduction. In this case, the employer's assignment of different but uniform tasks was considered lawful. This means that the newly assigned tasks must be uniform in respect to the original tasks and in accordance with the expertise required and the professional standards and assets acquired. Furthermore, the task change must not be motivated by the employer's will. The demotion may result from a business reduction that has produced a general change in company organisation.

This decision is particularly relevant, as it excluded employer liability related to mobbing because the employee submitted no evidence of employer misconduct.

In accordance with case law, the court recalled the general principle by which the employer must protect employees' physical and psychological health pursuant to Article 2087 of the Civil Code and must follow the principle of neminem ledere (ie, a general duty of care), by which the employer should commit no non-property offence.

The court specified that 'mobbing conduct' consists of a pattern of persecutory behaviour by the employer (or another employee) with the abusive aim of damaging the employee's health, personality or self-respect. The employee therefore must provide evidence of:

• the persecutory behaviour;
• the abusive aim;
• the offence; and
• the relation between the behaviour and the offence.

Without such evidence, employer liability cannot be upheld.

The court held that the manager's injury was not caused by the employer's conduct; nor was the manager's excessive workload instigated by the employer. In accordance with Article 32 of the Constitution, employees may abstain from excessive workloads that could potentially damage their health. The court stated that the manager worked with complete autonomy and could have abstained from the excessive workload where it was necessary to do so for his health.

For further information on this topic please contact Andrea Stanchi or Annamaria Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522), fax (+39 02 551 91641) or email (a.stanchi@stanchilaw.it, a.pedroni@stanchilaw.it or studio@stanchilaw.it).