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.
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.
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.
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.