Snacks: Digestible Weekly Labour News – Issue 718 September 2022

Statute of limitations no longer runs during employment relationship
The statute of limitations for employment economic claims no longer runs during an employment relationship but only after its termination. Before the latest reforms concerning Article 18 of the Statute of Workers the remedy in case of unlawful dismissal was the reinstatement of employees to work and, therefore, the statute of limitations on economic claims was running during the employment. This conclusion is no longer appropriate, because Article 18 of the Workers’ Statute has been reformed and updated in the Fornero Law (Law 92/2012) and Jobs Act (Legislative Decree 23/2015) and reinstatement is no longer an automatic consequence of the unlawful dismissal. Reinstatement is ordered only in specific cases and, therefore, employees could consider not to file any claim during their employment so as not to lose their place of work. In the light of this scenario, it is correct to consider that statute of limitations for employment economic claims don’t run until the employment is over.
Supreme Court 06/09/2022 no. 26246

Employees that act as carers cannot be transferred
Under Article 33, paragraph 5, Law 204/1992, an employee who takes three days’ leave each month to care for a disabled family member cannot be transferred without his or her consent even if the person they care for is not ‘severely disabled’. The reference to a “person with a severe disability” should not be interpreted literally and includes all people who have a genuine need for assistance regardless of the severity of their condition.
Supreme Court (ord.) 01/09/2022 no. 25836

Contribution payment liabilities
The clause concerning social security benefits in Article 2116 of the Italian Civil Code which states that even if an employer omits their contributions, employees can still enjoy social security coverage, does not apply to contracts for continuous service from employees enrolled in the “Gestione Separata” scheme. Such employees are personally liable for contribution payments as per Article 1, Ministerial Decree 291/1996 whereby a payment of two thirds of their contribution is charged to their employer constituting a legal delegation of payment, aimed solely at making the process simpler. In such scenarios, the person liable to pay contributions for the full amount remains the co-employee. So much so that if the employer defaults on contribution payments, the employee may ask INPS to assume the debt themselves and then claim it back from their employer.
Supreme Court 12/08/2022 no. 24753

Transfers of failing companies and automatic transfer of employees
A trade union agreement entered into with a failing company at the end of a company transfer procedure (in the cases affected by Article 47, paragraph 4-bis, Law 428/1990) may only depart from the provisions of Article 2112 of the Italian Civil Code with regards to the maintenance of previous financial and regulatory conditions that favour employees involved in the transfer, but may not stipulate the number of employees entitled to continue their relationship with the transferee.
Supreme Court (ord.) 22/08/2022 no. 25055

Dismissal announced on last day of sick leave invalid
The Supreme Court ruled that a dismissal given on the last day of allocated sick leave period for ‘exceeding’ this timeframe is null and void. Article 2110, paragraph 2, of the Italian Civil Code defines sick leave as a period within which dismissal for absence due to an illness or accident is prohibited and must be interpreted so as to protect health and promote work. In this context, health cannot be adequately protected other than within a time frame within which a sick or injured employee can undergo the appropriate treatment without fear of losing their job.
Supreme Court 28/07/2022 no. 23674

Notion of subordination
With regards to various basic but common tasks (such as bricklaying) undertaken in the construction industry, it can be difficult to ascertain whether a subordinate relationship exists or not between workers. In a recent case to ascertain whether the performance of three employees, each formally qualified as self-employed, fell within the framework of subordination, the Supreme Court had to rely on subsidiary elements of their employment relationship including continuity and duration of said relationship, their fixed working hours, pre-established monthly salary and use of their employer’s work equipment.
Supreme Court (ord.) 21/07/2022 no. 22846

Company may refuse to hire employees of previous tender accused of serious or criminal offences
The obligation of a company taking over a tender contract to employ the employees of an outgoing tenderer who rendered their services under the same contract (by virtue of the NCKLA’s provisions) is not absolute. Pursuant to the general principles of the legal system, the successor company may refuse to hire an employee of the outgoing company who has committed serious or criminal offences.
Supreme Court (ord.) 14/07/2022 no. 22212

Limitation period for claims on remuneration begins with individual fixed-term contracts even if they are repeated
Where there is more than one fixed-term contract validly entered into between parties, the limitation period for remuneration claims runs from the termination of an individual fixed-term contracts in cases of claims relating to work performance and from the end of each fixed-term contract in cases of claims relating to the termination of contracts.
Supreme Court (ord.) 13/07/2022 no. 22170