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Snacks: Digestible Weekly Labour News – Issue 7827 October 2022

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"Due to recent case law, the statute of limitation concerning employment credits doesn’t run (any more) during employment."

Deadline for sending communications of smart working activation extended to 1 December 2022
The deadline to communicate individual smart working agreements with employees has been extended. The deadline had already been postponed to 1 November 2022, but the lack of entry into operation of the ministerial application for mass communications (Api Rest service), which is still not available to companies, has made the further extension necessary. To fulfil the communication obligation to the Ministry of Labour (pursuant art. 23, Law 81/2017) it is no longer necessary to file all individual smart working agreements, but sufficient to make an individual communication for each employee. The mass submission service envisaged (but not yet available) by Api Rest allows employers who have activated a large number of smart working agreements to save time through mass communication.
Ministry of Labour, Note 25/10/2022

Refusal to perform ‘inferior’ tasks legitimate
A refusal to perform tasks that are considered ‘inferior’ to an employee’s rank and job description is not considered serious insubordination, provided that the employee’s reaction was proportionate and that the refusal was not done with malicious intent. Provided the employee attempted to find a solution with their employer and there are no compelling and/or unavoidable business need underlying the assignment to them of said task, the employee may legitimately refrain from performing it. A disciplinary dismissal inflicted by an employer for insubordination, due to an employee’s refusal to perform new ‘inferior’ tasks is illegitimate and the employee must be reinstated and may receive compensation for damages for a maximum amount of 12 months’ salary provided for by Article 18, paragraph 4, Workers’ Statute.
Supreme Court (ord.) 18/10/2022 no. 30543

Significant changes to procedures for dismissal disputes and assisted negotiations
Legislative Decree 149/2022 implementing the so-called ‘Cartabia’ civil process reform (Law 206/2021), has been published in the Official Journal. Among the changes made in the employment sector, effective from 30 June 2023, are:
– an option of assisted negotiation procedures for employment disputes where each party is assisted by a lawyer or an employment consultant. Any agreement reached is equal to conciliations signed at so-called protected venues;
– the abolition of the so-called Fornero Procedure (Article 1, paras. 47 et seq., Law 92/2012) for disputes challenging dismissals in cases governed by Article 18, Law 300/1970. Consequently, all such disputes, irrespective of their applicable protection regime, will be governed by the regular employment procedure;
– dismissal disputes in which reinstatement to one’s place of employment is requested, even when questions relating to the classification of the relationship must be resolved, have priority (new Article 441-bis of the Italian Civil Procedure Code). A judge may reduce the time of such proceedings by up to 50%. In such cases, a time limit of no less than 20 days must elapse between the date of service and the hearing, and the time limit for entering an appearance in court is reduced by 50%;
– judges must reserve particular days (even if close together) for the pre-trial and decisional phases in applications for reinstatement of employment;
– all stages and levels of proceedings (including appeals and the Supreme Court) relating to dismissal disputes must be decided with the same time and clarity requirements;
– in a case involving the dismissal of a member of a cooperative, the employment judge is also competent in matters relating to any cooperative relationship involved. This is also the case in instances where a termination derives from the termination of an associative relationship (new Article 441-ter of the Civil Procedure Code); and
– actions for nullifying discriminatory dismissals, where they are not brought through the ordinary employment tribunals, may be brought through special procedures (Article 38, Legislative Decree no. 198/2006 and Article 28, Legislative Decree no. 150/2011). Once the relevant procedure has been chosen, it is not possible to subsequently bring proceedings under a different procedure(new Article 441-quater of the Italian Civil Procedure Code).
Legislative Decree 10/10/2022 No. 149

Work-related anxiety always insured by INAIL
Any form of occupational illness that is a consequence of the performance of work activity is insured by INAIL, including mental health issues such as anxiety and depression. It follows that an employee who, due to an adverse work situation, developed depression or anxiety is entitled to claim compensation for damages from INAIL. For the purposes of INAIL coverage, not only the specific risks of work activities are relevant, but also so-called “improper risks” which refers to risks not strictly inherent in the act of work but connected to it. Therefore, all forms of physical or psychological illness attributable to work-related risk are indemnifiable.
Supreme Court (ord.) 11/10/2022 no. 29611

Absence pending medical examination for suitability unlawful
Employees who have been absent due to illness for a period of more than 60 consecutive days are required to undergo a medical check-up to ascertain their fitness for the job (Article 41, Legislative Decree 81/2008). This provision does not, however, justify an employee remaining absent from work while waiting for the medical examination to be scheduled. Moreover, an employer cannot take steps to schedule a medical examination if an employee does not return to work. Said employee may not, therefore, refrain from returning to work pending the medical examination and their employer can assign them to other duties pending confirmation of their suitability for the job in question. In light of these considerations, the Supreme Court ruled that an employee’s absence while waiting for a medical examination was unjustified and the disciplinary dismissal ordered by their employer lawful.
Supreme Court (ord.) 12/10/2022 no. 29756

Principal’s joint liability confirmed for logistics tender contracts
The joint liability of principals, set forth in Article 29, paragraph 2, of Legislative Decree 276/2003, also applies to tender contracts in the logistics sector that have as their objective the joint provision of two or more services that fall within the scope of logistics (receiving, processing, storage, warehousing, shipping, etc.). The Ministry of Labour has expressed this position in relation to the recent amendment to Article 1677-bis of the Civil Code, according to which, if a tender contract relates to two or more logistics services, the regulations covering transport contracts apply insofar as compatible. A doubt arose as to whether the joint liability of principals should be excluded for logistics tender contracts with joint performance of several services. The Ministry of Labour intervened and, relying on the observation that the rules covering transport contracts apply only if “compatible”, concluded that principals’ joint liability regime cannot be excluded from logistics tender contracts.
Ministry of Labour, Circular 17/10/2022 No. 1

Legitimate to exclude candidates claiming religious requirement to wear veils at work
In a case before the European Court of Justice (“CJEU”), it was determined that an employer may legitimately exclude a candidate for an internship on the basis that they claim a religious requirement to wear a veil at work. The company in question’s rules prohibited employees from expressing their religious, philosophical or political convictions in any way, either verbally or sartorially. The CJEU concluded that the company’s regulation did not constitute direct discrimination, as the prohibition on wearing large and conspicuous clothing (such as the wearing of a veil or other headscarf identifying religious affiliation) was aimed at all forms of religious expression or philosophical or political convictions and was not limited to specific religions. The company’s regulation was therefore lawful, as the desire to express religious and political neutrality when dealing with customers is part of the principle of freedom of enterprise.
Court of Justice of the European Union 13/10/2022 (Case C-344/20)

Membership of cooperatives and recognition as an employee
In order to ascertain whether a cooperative member is deemed an employee, therefore requiring the reclassification of their employment relationship, it is necessary to consider the principle that the actual manner in which work is performed prevails over the nomen juris, i.e. the contractual form given to the relationship by the parties. Given this principle, it has been confirmed that if a cooperative member’s service is basic, repetitive and predetermined in its manner of performance, the criterion of being subject to management direction is not diriment. However if a cooperative member meets the criteria concerning the continuity and duration of a standard employment relationship, i.e. fixed and predetermined remuneration and working hours, performance of duties strictly connected to the business’ organisation and absence of company risk, then their activity must be classified as subordinate work and they will be required to pay full social security contributions.
Supreme Court (ord.) 13/10/2022 no. 29973