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Snacks: Digestible Weekly Labour News – Issue 11222 June 2023

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"If instructions and control over the employees is done through a software, it is prudent to execute a company agreement."

Monetisation of accrued annual leave excluded only if specific notice given during employment relationship
The limitation period for the entitlement to allowances in lieu of holidays and unused weekly rest periods runs from the termination of the employment relationship, unless the employer proves that it explicitly asked the employee to take the holidays and weekly rest periods during the employment relationship. Moreover, the request must be clear and made in sufficient time to ensure that the holiday and rest periods are still capable of providing the employee with the rest and relaxation for which they are intended. Furthermore, the employer’s request must contain the warning that if the employee does not take leave and rest, they will be lost at the end of the reference period. Only if these conditions are complied with will an employee lose the right to the monetisation of the annual leave and weekly rest periods accrued and not taken during the employment relationship.
Supreme Court (ord.) 20/06/2023 no. 17643

Dismissal for level of physical fitness
Dismissal on the basis that an employee has become physically unfit to carry out their tasks will only be lawful if the employer has first verified (i) the unavailability of alternative tasks (including tasks of a lower level) which can be assigned to the employee within the existing company organisational structure, and (ii) the unavailability of other tasks following “reasonable accommodation” by the company’s organisational structure. The dismissal will be unlawful if the employer cannot prove that it is impossible to adopt reasonable organisational arrangements that would allow the employee to be assigned to other tasks suitable to their physical fitness. The burden of proof can be discharged by means of evidence that the employer has diligently attempted to find an appropriate and consistent organisational solution to avoid the dismissal.
Supreme Court 29/05/2023 no. 15002

Employee whose investigations fall under the scope of whistleblowing is exempt from disciplinary liability
Disciplinary sanctions are invalid where they are imposed on an employee for conducting personal investigations and examining documentation irrelevant to their duties with the intention of reporting the existence of unlawful conduct. These initiatives undertaken by an employee fall within the regulations on whistleblowing. An employee is exempt from disciplinary liability for the reporting of unlawful conduct of which they have become aware “by reason of the employment relationship”.
Supreme Court 22/05/2023 no. 14093

Performance management and monitoring through software and sub-contract irregularities
A sub-contract is a sham if the timing and methods of work provided under it are organised and managed by means of the contracting company’s software, which instructs the cooperative’s employees who are identified in advance by a voice recognition system linked to a bar code. The fact that a cooperative has one or more appointees within an intra-company contract with residual control functions is irrelevant. In contrast, the fact that the entire activity is substantially remote-controlled by means of the electronic voice processed by the contracting company’s software is decisive. The software guides the employees through the work shift by issuing every minute instruction, hundreds of times a day. If these conditions are met, the contract is unlawful and falls within illegal labour brokering. This leads to the recognition of the subordinate nature of the relationship of the employees employed by the contracting company.
Court of Appeal Venice, Reporting Judge Alessio, 30/03/2023

Obligation to report accumulated debts for INAIL insurance premiums
INAIL is required to report to a company and to any relevant supervisory body the debts that the employer has accrued by way of unpaid insurance premiums that are over 90 days overdue. The Business Crisis Code (Article 25-novies of Legislative Decree no. 14/2019) establishes that, under specific conditions (non-payment for more than 90 days and minimum threshold of contribution and tax debt), mandatory social security and assistance bodies and the Italian Revenue Agency are required to notify persons registered in the Companies Register of the debts they have accrued (the reference is to debts assessed from 15 July 2022) with an invitation to request a negotiated settlement. INAIL has now clarified that a similar obligation applies to insurance premiums owed to it, and that the report may be made by certified email or registered letter with advice of receipt. INAIL’s reporting obligation arises when the debt has been overdue for more than 90 days and the amount of unpaid premiums exceeds €5,000.
INAIL, Circular 16/06/2023 no. 28

One-off allowance for “vertical” part-time employees with periods of inactivity
Employees who in 2021 had a cyclical “vertical” part-time contract (where they only work for predetermined periods in a given period) and had a continuous period of inactivity of at least one month, and a total period of inactivity of at least seven weeks (but not more than 20), are entitled to the one-off allowance provided for by the Aid Decree (Article 2 bis of Law Decree no. 50/2022). The INPS clarified that, under this provision, requests for review submitted by employees meeting the requirements should be accepted. The review was necessary due to the initial incorrect classification of such employees as “horizontal” part-time employees (when the employees work each day but for fewer hours than the normal working day). The amount of the allowance is €550. The allowance is paid on the basis that the part-time employee, at the date of submission of their application, was not a recipient of NASPI unemployment benefit or a beneficiary of a direct pension benefit (with the exception of ordinary disability allowance). In light of the granting of the review application, employers must correct the data relating to the declaration of part-time work and periods of inactivity.
INPS, Message 16/06/2023 no. 2247

Smart-working extended to 31 December 2023for certain employees
Whilst implementing the “Employment Decree”, the Italian Parliament is considering the possibility of further extending the right to smart working for (i) vulnerable employees (subject to a specific medical assessment), (ii) employees with children under 14, or (iii) employees with seriously disabled children.  In the latter two cases the right extends only to employees belonging to households in which the other parent does not receive income support or does not work. The last extension of the special framework was until 30 June 2023. It should be remembered that parents with children under 14 have the right to smart-working on the condition that the tasks assigned to the employee – who meets all the other access requirements – are compatible with remote work. On the other hand, the right of vulnerable employees to access smart working is not subject to any such conditions; in this case the employer must also consider assigning the employee other tasks compatible with smart working.
Parliamentary proceedings