Labour and Employment Laws in Italy

1 Legal framework

1.1 The Statutory Sources of Labour and Employment Law?

The hierarchy of laws in Italy is as follows:

• EU directives and regulations and international treaties;
• the Italian Constitution and laws:
• ordinary laws (ie, the Civil Code);
• the provisions of collective and individual bargaining agreements; and
• customs (ie, company practices).

The main Italian labour laws are:

• Law 604/1966, which regulates individual dismissals;
• the Workers’ Statute (Law 300/1970), which sets out rules to protect the freedom and dignity of employees, trade union activity in the workplace and rules on employment;
• Law 223/1991, which regulates collective redundancies;
• Legislative Decree 66/2003 on working time;
• Legislative Decree 81/2008 on health and safety in the workplace;
• the Fornero Law (Law 92/2012), which regulates various issues relating to labour relations, including a special court procedure for disputes concerning dismissals subject to the provisions of Article 18 of the Workers’ Statute;
• Legislative Decree 23/2015, which introduced new protections against unlawful dismissals, applicable only to workers who are hired on an indefinite-term basis with effect from 7 March 2015; and
• Legislative Decree 81/2015, providing comprehensive regulation of employment contracts, as well as a revision of the regulations on job duties.

1.2 The Contractual System

In addition to statutory sources, individual and collective agreements play a key role in the regulation of employment relationships.

Several (significant) employment-related matters are governed by national collective bargaining agreements and by collective agreements which are executed with works councils at company level.

National collective bargaining agreements are negotiated by employers’ association on the one hand and trade unions on the other, in connection with different business sectors (eg, metal-mechanical, trade and tertiary, chemical and pharmaceutical, food). Among other things, such agreements establish the minimum economic and legal standards which are to apply to employees working in the relevant business sector.

There is no obligation that employment relationships be governed by a national collective bargaining agreement, unless:

• both the employer and the employee join, respectively, an employers’ association and a trade union that have executed a specific national collective bargaining agreement; or
• both the employer and the employee have agreed that a specific national collective bargaining agreement will apply, either expressly (eg, through a clause in the employment agreement) or implicitly (ie, by applying the main and most significant clauses under a specific national collective bargaining agreement).

Bargaining agreements may also be executed at company level by the employer on the one hand and works councils established within its premises on the other. These agreements normally govern various aspects of the employment relationship, providing for conditions more favourable to employees than those under the applicable national collective bargaining agreement.

1.3 The Employment Contracts

Regardless of the category or classification assigned to the employee, an employment contract generally need not be executed in writing, except in certain cases, in accordance with the rules set out in the Civil Code on contracts, which are generally applicable thereto. An employment contract may thus be executed orally or through conclusive behaviour. In practice, however, employment relationships are usually concluded in writing, without prejudice to the possibility of referring to the provisions of law and of the applicable CCNL for the regulation of certain non-essential elements.

Certain types of contracts, such as labour supply contracts and fixed-term employment contracts, are required by law to be executed in writing, in any case as regards:

• the term (where this exceeds 12 days); and
• certain clauses (eg, those relating to probation periods and non-compete obligations).

By law, the employer must provide the following information in writing to the employee:

• the parties’ identification data;
• the place of work;
• the employment start date;
• provisions relating to any probation period;
• the duration of the employment relationship; and
• the employee’s classification, level, qualifications and job duties.

In addition, where there is no reference to the provisions of an applicable collective agreement, the employer must provide the employee with the following information in writing:

• the duration of any probation period;
• the remuneration for the role;
• the number of holiday;
• the employee’s working hours; and
• the notice period in the event of termination.

The employer must also provide the following information in writing to the competent employment centre:

• the recruitment notice;
• the content of the employment contract; and
• other information concerning the employment relationship.

2 Employment Rights and Representations

2.1 The Parental Leaves

The current regime for the protection and support of parents is set out in Legislative Decree 151/2001.

A biological working mother is entitled to compulsory leave, which generally lasts from the beginning of the second month preceding the probable date of birth (so-called ‘antepartum maternity leave’) to the end of the third month following the birth (so-called ‘postpartum maternity leave’).

Allowing both parents to combine work with childcare, Legislative Decree 151/2001 provides for optional leave, which may be taken by either the mother or the father in the first 12 years of each child’s life, extendable for up to three years if the child has a serious disability. Parental leave can be taken by the parents simultaneously or separately and for either a continuous or broken-up period.

Collective labour agreements can include provisions which allow optional leave to be taken on an hourly basis.

A father is entitled to ‘compulsory paternity leave’ for five days in the first five months of his child’s life, for either a continuous or broken-up period. He is also entitled to the period of postpartum leave which the mother would have taken (wholly or partially, depending on the period effectively benefited from by the latter) in case of:

• the death or serious disability of the mother;
• child abandonment by the mother; or
• the grant of custody of the child to the father on an exclusive basis.

2.2 The benefits under parental leaves

The right to parental leave (which lasts up to 10 months) may be exercised by each parent for a continuous or divided period of up to six months, unless there is only one parent. However, if a working father exercises his right to take more than three months off work on a continuous or divided basis, the total parental leave available to the parents is increased to 11 months.

The Italian legal system guarantees the parents favourable economic treatment while they are on leave. In particular, for the entire duration of the mandatory leave, the working mother (or the working father in those cases provided for by law) is entitled to an allowance equal to 80% of the average daily salary, which is covered by the Istituto Nazionale della Previdenza Sociale (INPS); some collective agreements provide for the payment of the remaining 20% by the employer, so as to guarantee a sum equal to the entire salary received by the worker. As regards mandatory paternity leave, a daily allowance is paid by the INPS equal to 100% of the salary.

Finally, during periods of optional leave, both parents are entitled to receive an allowance, again paid by INPS, equal to 30% of the average daily wage, for a maximum total period of six months, if taken within the first six years of the child’s life.

National legislation also provides for assistance to mothers who are not working and whose families are in need.

2.3 Trade Unions

Article 39 of the Italian Constitution states that “trade unions are free”. This freedom is bi-directional: that is, it applies both to public law, with regard to relations with the state and public authorities; and to private law, with regard to relations with employers.

To avoid legislative intervention limiting collective bargaining freedom, trade unions are assigned to the private law sphere through their classification as non-recognised associations.

The main rights attributed to trade unions are:

• the right to associate and perform any activity on behalf of represented employees;
• the right to strike and to execute collective bargaining agreements; and
• the right to be informed and consulted when specific events – as provided either by the law or by the collective labour agreements – occur, affecting the business carried out by the employer.

Union representation can be established in each production unit by works councils, which have, among other things:

• the right to call meetings (including during working time);
• the right to hold referenda and to post texts and announcements related to union matters; and
• information and consultation rights on the occurrence of specific events (eg, transfer of undertakings and redundancy procedures).

Trade union managers are guaranteed paid and unpaid leave for the completion of their term and to participate in negotiations and trade union congresses or conferences.

Legal action against anti-union behaviour may be commenced by local bodies of trade union organisations if the employer’s conduct ends up preventing or limiting the freedom of the trade union or the right to strike.

2.4 Data Protection Regulations

The main regulatory sources for the processing of personal data are:

• the EU General Data Protection Regulation (2016/679) (GDPR); and
• Legislative Decree 196/2003, as amended by Legislative Decree 101/2018.

Article 88 of the GDPR expressly refers to the processing of data in the context of employment relationships, leaving member states free to provide, by law or collective agreement, more specific rules to ensure the protection of employees’ rights and freedoms.

In general, an employer is allowed to process the personal data and information of its employees, provided that it complies with the general principles of lawfulness, transparency, fairness and proportionality.

With regard to the remote monitoring of workers, under Article 4 of the Workers’ Statute, as amended by Legislative Decree 151/2015, an employer can use audio-visual systems and instruments which allow the activities of employees to be monitored only if those systems and instruments – which in any case may be installed only with the prior agreement of the relevant trade unions or, failing that, authorisation from the relevant public administration – are used to meet requirements relating to organisation and production, work safety and the protection of company assets.

However, these guarantees do not apply to the tools used by employees to perform their work duties (eg, smartphones, tablets, personal computers), or to tools for recording access and attendance; the employer may thus utilise these without any prior trade union agreement or authorisation from the relevant public administration.

2.5 The Contingent Worker Arrangements

The use of contingent workers – also called ‘casual workers’ – who provide occasional services is governed by Law Decree 50/2017, recently reformed by Law Decree 87/2018 (the so-called ‘Dignity Decree’), which has made it easier to use this type of contract in the tourism sector, as well as in agriculture and by local authorities.

This is a kind of work whereby an individual engages in work activities (possibly for a number of different employers) resulting in total annual remuneration of up to €5,000, provided that the work performed for one particular employer does not result in remuneration of more than €2,500 per year.

In addition, the employer cannot enter into this type of agreement with a worker who has previously worked for it within the previous six months as either an employee or an independent contractor. Casual workers further cannot be used within the framework of a service agreement or by construction companies.

Casual workers have special status because they are different from other employees: their salary can be freely set by the parties, subject to a minimum wage of €9 per hour of work, and they have no right to compare their treatment with other employees. However, if the contingent work is carried out in breach of the law, the casual worker might claim that he or she has the status of an employee and may therefore claim the same rights granted to employees in case of dismissal.

3 Employment Benefits

3.1 National Minimum Wage

Remuneration is the main economic right of an employee. Italian law does not expressly provide for a minimum wage.

Article 36 of the Constitution regulates fair pay. Articles 2099–2102 of the Civil Code indicate how pay is to be determined. Collective bargaining agreements identify items of pay and the amount to be paid to the employee according to their classification.

The reference standard is set out in Article 36 of the Constitution, which provides that a worker is entitled to “remuneration commensurate with the quantity and quality of their work and in any case sufficient to ensure a free and dignified existence for them and their families”.

Remuneration is ‘sufficient’ if it is adequate to ensure a minimum level of subsistence and affords the worker and his or her family a standard of living that is adequate to the historical and environmental context.

The principle of proportionality expresses the correlation between pay and the tasks performed by the worker (quality) and the time worked (quantity).

A judge can determine the quantum of basic pay by reference to the minimum rates laid down in the collective agreements applicable to the relevant category or industry. In these terms, sufficiency and proportionality are not absolute for all workers, but vary according to the sector and the qualifications of the individual worker.

National collective bargaining agreements are negotiated between the trade unions that represent the workers in a particular industry/sector and the relevant employers’ associations.

3.2 Entitlement to Payment for Overtime

According to Section 2108, paragraph 1 of the Italian Civil Code, in case of performance in excess of ordinary working time, employees must be compensated for overtime in the form of remuneration at a rate that is higher than that payable for ordinary work.

For a long time, the rules on working time were set forth by Royal Law Decree 692/1923. Section 1 of this law decree fixed the maximum duration of regular working time at eight hours per day and 48 hours per week. Section 5 further set the maximum limits for overtime at two hours per day and 12 hours per week.

Legislative Decree 66/2003 has since replaced the regulations on regular working hours and overtime, implementing EU Directives 93/104/EC and 2000/34/EC, respectively. According to Legislative Decree 66/2003, collective bargaining agreements should regulate the main aspects of this matter. However, it further provides that:

• recourse to overtime must be limited;
• if no provisions on overtime are set out in the applicable national collective bargaining agreement, overtime is allowed, conditional on agreement between the employer and the employee, up to a maximum cap of 250 hours per year; and
• in the absence of a national collective bargaining agreement, overtime is permitted in case of exceptional technical or production-related needs, force majeure or special events such as fairs (in this event, information obligations apply).

Generally speaking, national collective bargaining agreements provide a maximum yearly threshold for overtime and establish pay increases to which employees performing overtime are entitled.

3.3 Annual Leave

Article 36(3) of the Constitution recognises a worker’s right to a period of paid annual leave. Article 10 of Legislative Decree 66/2003 states that the minimum length of leave is four weeks. This will apply unless otherwise provided for by collective agreements: the first two weeks must be taken in the year in which they accrue (the ‘year timeframe’ principle); while the third and fourth weeks must be taken no later than 18 months after the end of the year in which they accrue.

Article 2109 of the Civil Code provides that the period of leave is fixed by the employer, “taking into account the needs of the business and the interests of the employee”.

An employer has the right to alter the holiday period in light of business needs, but the employee must be given adequate notice of such changes. This presupposes that the employee is informed before he or she leaves on holiday, as – unless otherwise agreed – the employee is not required to be on call during the holiday period.

The holiday period must be paid (according to the collective bargaining criteria) and cannot be replaced by an allowance for holidays not taken, except in case of termination of the relationship.

Workers are also entitled to the following public holidays:

3.4 Sick Leave

According to Section 2110, paragraph 1 of the Italian Civil Code, in case of accident, illness, pregnancy or puerperium, if there are no legal provisions setting forth equivalent forms of social security, employees are entitled to the payment of remuneration or of an indemnity whose amount and term for payment are specified by law, by practice or by applying a fairness criterion.

Except for certain cases (eg, executive status employees), this indemnity is paid by the Italian Social Security Authority (Istituto nazionale della previdenza sociale (INPS)) or by the Italian Mandatory Insurance against Accidents at Work, depending on why the employee is absent from work.

Section 2110, paragraph 2 entitles the employer to terminate the employment contract if an employee’s absence from work for any of the reasons outlined above exceeds the maximum term set forth by law, by practice or by applying a fairness criterion.

Generally speaking, this maximum term is set forth by the applicable national collective bargaining agreement (if any – under Italian law, except in limited cases, there is no obligation that employment relationships be governed by a national collective bargaining agreement), and varies according to the employee’s seniority.

Section 2110, paragraph 3 clarifies that the term for which employees are absent from work for any of the reasons outlined above must be taken into account when quantifying seniority.

3.5 Statutory Retirement Age

Law 201/2011 distinguishes between old-age pensions and early retirement pensions.

The right to an old-age pension accrues (for both men and women in the public and private sectors) at the age of 67 (Ministerial Decree of 5 November 2019), provided that contributions have been paid for at least 20 years.

In order to meet this 20-year requirement, the following contributions are valid:

• in lieu of college years, credits for military service;
• contributions for unemployment benefits;
• maternity contributions; and
• contributions paid to all INPS management schemes or to professional funds, provided that they relate to periods that do not coincide.

An early retirement pension is not age dependent, but rather depends on the achievement of a certain contribution requirement as follows:

• 41 years and 10 months for women; and
• 42 years and 10 months for men.

It is also possible to retire by availing of the so-called ‘quota 100′ on reaching 62 years of age and 38 years of contributions.

Furthermore, a voluntary anticipo finanziario a garanzia pensionistica (APE) can be requested. whereby a bank or an insurance company pays a monthly allowance – either alternative or complementary to salary – before retirement. The conditions to avail of an APE are as follows:

• 63 years of age;
• 20 years of contributions; and
• no disability pension.

The loan is repaid in 240 monthly instalments; the INPS deducts the sum from part of the monthly pension paid thereafter.

A ‘temporary supplementary income in advance’ (RITA) may also be availed of, where very strict requirements are met, which allows for anticipated retirement between five and 10 years before the standard age.

4 Discrimination and Harassment

4.1 What actions are classified as unlawfully discriminatory?

The Italian legal system contains a general constitutional principle of equality, based on citizens’ equal dignity before the law, which prohibits all forms of discrimination and requires public institutions to remove all economic and social obstacles that de facto limit the equality of citizens and workers. The Constitution also expressly provides that working women have the same rights as men and are therefore entitled to equal pay for equal work.

In addition, Italian law more specifically prohibits discrimination in the workplace on the following grounds: sex, political opinion, union-related activity, religion, race – including nationality, ethnic or national origin and colour – language, disability, age, sexual orientation and personal beliefs.

Any action by the employer aimed at creating differential treatment on any of the abovementioned grounds is considered unlawful and discriminatory.

Discrimination may occur:

• during the recruitment process (eg, selection, interview);
• during employment (eg, remuneration, access to benefits, promotions, disciplinary procedures); and
• in case of termination.

Discriminatory actions may be:

• direct – that is, any action, agreement or behaviour that has discriminatory effect (ie, that accords less or more favourable treatment) against workers based on any of the abovementioned categories; or
• indirect – that is, any action, criterion, agreement or behaviour which, although apparently neutral, creates a particularly disadvantageous situation for workers in any of the abovementioned categories.

4.2 Are there specified groups or classifications entitled to protection?

Equality between men and women must be guaranteed in all areas of working life, including:

• access to employment, training, professional promotions, careers and social security;
• pay; and
• termination of employment.

Other forms of discrimination are also prohibited, as follows:

• race and ethnic origin – that is, less favourable and differential treatment suffered by one person compared to another due to his or her race or ethnic origin;
• religion and belief – that is, less favourable and differential treatment suffered by one person due to his or her personal beliefs (or lack thereof) or religion, except in the case of public or private organisations that are based on a specific religion or belief;
• disability – except where the physical, mental or sensory disabilities of a disabled worker may endanger him or her, colleagues or third parties;
• age – unless a distinction is necessary to protect the worker;
• sexual orientation;
• language and nationality – except where nationality or citizenship is required as a condition for a particular type of work (eg, public service, army);
• personal opinions – the employer may not investigate an employee’s opinions or any facts that are irrelevant to the assessment of professionalism; and
• trade union activity – every worker has the right:
  • to form or join a trade union;
  • to engage in trade union activity; and
  • to participate (or not) in a strike (except for essential public services).

Generally, all discriminatory conduct is prohibited unless differences are an essential and determining requirement for employment.

4.3 What protections are employed against discrimination in the workforce?

In addition to the general prohibition on discrimination in the workplace, Italian law provides special protection for some of the abovementioned vulnerable categories:

• Sexual discrimination: In order to promote the representation of women in the workplace, the law provides for positive actions such as incentives for women, flexible work, promotion of vocational training and nurseries inside the workplace. The implementation of positive actions is governed by the National Committee for Equal Opportunities and the equal opportunity advisers appointed at national and local level. These bodies aim to promote equal opportunities between men and women and are involved in several procedures aimed at verifying potential discrimination against female employees. In addition, within public administrations and supervisory bodies of Italian listed companies, reserved quotas for women have mandatory application.
• Disability discrimination: Workplaces and duties must be suitable for disabled employees. Employers must ensure that disabled employees can access facilities and are properly equipped to meet their needs. Public institutions may subsidise the adaptation of the workplace. Employers are also obliged to hire a certain percentage of disabled workers, in relation to the total number of company employees.
• Religious discrimination: Workers cannot, under any circumstance, be obliged to reveal information about their religious beliefs. Furthermore, employees may ask companies to allow them to fulfil their religious mandates (eg, observing a different day of rest instead of Sunday or observing a particular diet in the canteen).

4.4 How is a discrimination claim processed?

Article 15 of the Workers’ Statute declares null and void any act or pact that is prejudicial to the worker on the grounds of gender. This prohibition was extended by Legislative Decrees 215/2003 and 216/2003 to include political, religious, racial and linguistic grounds.

Employees can appeal against discriminatory conduct to an employment tribunal, either individually or collectively.

An employee can apply individually to the employment tribunal. The action may be ordinary or urgent. A request can be made for a declaration of nullity and cessation of the discriminatory act, as the case may be. Protection is provided to the employee, granting compensation and restoration, such as the adoption of a plan to remedy the discriminatory effects.

A worker who has suffered discrimination can also start a procedure under Article 38 of the Equal Opportunities Code. In the event of discriminatory behaviour, the worker (or the trade union on his or her behalf) or an equal opportunities adviser can file an urgent complaint with a judge to obtain an order for cessation of the behaviour and remediation of its effects, in addition to compensation for any prejudice suffered.

The action may be brought independently by the competent equality adviser if the discriminatory conduct was collective. In this case, once again, the action may be ordinary or urgent. In the case of collective action, the results of the action will not be limited to the individual sphere, but will allow for a collective plan to remedy the discriminatory effects.

In these proceedings, whether ordinary or urgent, the employee must prove to the judge facts (eg, relating to pay or duties) that suggest the existence of discriminatory acts or agreements. Conversely, the employer must prove that no discrimination took place.

4.5 What remedies are available?

In light of the above, employees (and other institutions so entitled in this respect) can bring claims for discrimination before the Labour Court.

The court may order the employer to stop the discriminatory conduct and remedy its effects, and determine a plan in order to prevent future discrimination. The court might also award damages. In general, there is no minimum or maximum amount of damages established by legislation, as this is usually determined at the discretion of the judge. In some cases, the amount of damages is specified by law; for example, employers that do not comply with the legal requirement to hire a certain percentage of disabled employees are subject to a penalty of €153.20 per day for each disabled worker not employed.

In case of unlawful dismissal based on discriminatory grounds, the court will consider the termination as null and void. All employees, including executives, who are dismissed for discriminatory reasons have the right to reinstatement with payment of lost remuneration from the date of dismissal until the effective reinstatement date, with a minimum of five months’ salary.

4.6 What protections and remedies are available against harassment, bullying and retaliation/victimisation?

The same protections as for discrimination apply against any conduct that is detrimental to human dignity, both during and on termination of the relationship.

Legislative Decree 5/2010 extended judicial protection for discrimination to bullying – that is, retaliatory behaviour by the employer against action taken to enforce equal treatment.

Law 4/2021 ratified and implemented in Italy International Labour Organization Convention 190 on the Elimination of Violence and Harassment in the Workplace (Geneva, 21 June 2019).

The convention focuses on threats, bullying and stalking.

The convention protects workers and all those in any work environment, regardless of the type of contract, including trainees, apprentices, laid-off workers and volunteers.

Article 1 defines ‘violence’ and ‘threats’ as threated or actual practices and behaviour, whether individual or repeated, that are aimed at, cause or result in physical, psychological, sexual or economic harm, including gender-based violence and harassment.

Under the convention, Italy is obliged to adopt specific rules regarding:

• consultation with workers and their representatives on a company policy on violence and harassment at work;
• the inclusion of violence and harassment, as well as related psychosocial risks, in occupational health and safety management;
• the identification of hazards and risk assessments relating to violence and harassment; and
• the provision of information and training to workers and other stakeholders on the dangers and risks of violence and harassment and relevant prevention and protection measures.

5 Dismissals and Terminations

5.1 Terminating an Employment Contract?

During the probationary period, an employment contract may be terminated without giving a valid reason.

Once the probationary period has ended, an employment contract may be lawfully terminated by the employer only:

• for just cause – that is, a breach by the employee whose seriousness prevents continuation of the employment relationship, even on a temporary basis (eg, theft of the employer’s goods);
• on subjective justified grounds – that is, a less serious breach by the employee (eg, unjustified absence from work); or
• on objective justified grounds which relate to the production, the work organisation or its regular operations (ie, individual redundancies).

Moreover, employers with more than 15 employees are entitled to dismiss employees through a collective dismissal procedure. This applies whenever the employer – due to the reduction, transformation or shutdown of activities – intends to dismiss, within a 120-day term, at least five employees employed at the same production unit or at different production units within the same municipality (ie, collective redundancies).

Employment contracts with executive employees are governed by specific rules set forth by national collective bargaining agreements applicable to this category of employee, which generally provide that their dismissal must be ‘justified’.

Otherwise, employees are entitled to resign from the employment relationship at will, conditional upon compliance with the notice period set forth by the applicable national collective bargaining agreement.

5.2 Is a minimum notice period required?

Generally, the terminating party must observe a notice period – that is, a period which elapses between notice of termination and the time of actual termination. The aim is to prevent the immediate termination of the contract from being detrimental to the other party. The duration of the notice period is normally specified in the applicable collective agreement and varies according to the category of worker, the level of classification and the length of service.

An individual contract may provide only for longer notice periods than those specified in the collective agreement.

During the notice period, the parties retain all rights and obligations under the employment contract.

The obligation to give notice does not apply in case of termination:

• for just cause;
• during the probationary period;
• at the end of a fixed-term contract;
• that is consensual between employer and employee;
• during periods of suspension of employment due to redundancy payments; or
• for failure to resume work following reinstatement.

In all other cases of termination, however, the notice period must be observed. If not, the party that fails to observe the notice period must pay the other party an indemnity in lieu, calculated on the basis of the employee’s normal remuneration, including bonuses, commissions and any continued remuneration.

5.3 What rights do employees have when arguing unfair dismissal?

If the dismissal is deemed null and void (eg, if it relies on discriminatory reasons), the employee is entitled to reinstatement and payment of damages equal to at least five months’ salary.

The remedies which apply where a dismissal is found unlawful vary depending on the employee’s qualifications and seniority, as well as on the breach by the employer and its gravity.

For middle managers, white-collar workers and blue-collar workers hired before 7 March 2015, they are as follows:

• reinstatement and payment of damages of up to 12 months’ salary in case of no misconduct or misconduct which should have been sanctioned other than by dismissal as per the applicable national collective bargaining agreement, or where an individual redundancy has clearly not occurred;
• payment of damages of between 12 and 24 months’ salary in case of dismissal deemed unlawful for other reasons;
• payment of damages of between six and 12 months’ salary in case of breach by the employer of rules governing the notification procedure for individual dismissals; and
• payment of damages of between 2.5 and six months’ salary (to be increased up to 14 months for employees of a certain seniority) if the employer has up to 60 employees overall and up to 15 employees employed in the same production unit or municipality.

For middle managers, white collar workers and blue collar workers hired after 7 March 2015, they are as follows:

• reinstatement and payment of damages of up to 12 months’ salary if it is directly demonstrated that the misconduct on which the disciplinary dismissal is grounded did not occur;
• payment of damages of between six and 36 months’ salary if the dismissal is deemed unlawful for other reasons;
• payment of damages equal to one month’s salary per year of service, within a minimum and maximum threshold of two and 12 months respectively, in case of breach by the employer of rules governing the notification procedure for individual dismissals; and
• payment of damages of between one and six months’ salary, depending on the seriousness of the breach by the employer, if the employer does not meet the size requirements outlined above.

Executive employees are entitled to payment of a so-called ‘additional indemnity’ established by the applicable national collective bargaining agreement (the greater the executive’s seniority, the higher the amount of the indemnity).

5.4 What rights, if any, are there to statutory severance pay?

Upon termination of employment, regardless of the reasons, an employee is entitled to the following:

• Trattamento di Fine Rapporto (TFR) severance pay – that is, an element of remuneration whose payment is normally deferred to a later date than the date of employment and which comprises the sum of annual provisions of a portion of remuneration. This is due to all employees, both fixed term and permanent. In the event of the employee’s death, it can be paid to his or her partner, children, relatives up to the third degree or relatives in law up to the second degree. It is calculated by adding, for each year of service, a portion equal to and in any case not exceeding the amount of salary due for that year divided by 13.5. It includes all non-occasional payments made in connection with employment, including the equivalent of benefits in kind.
• TFR severance pay can be managed in different ways:
  • In companies with fewer than 50 employees, management is the responsibility of the employer; and
  • In companies with more than 50 employees, the employer must pay the severance pay to the Treasury Fund set up at the Istituto Nazionale della Previdenza Sociale;
• supplementary pension schemes – the employer pays the amounts set aside as TFR severance pay to the pension fund and the employee, following termination of employment, will receive a supplementary pension where specific pension requirements are met;
• additional monthly payments provided for by collective agreements; and
• allowances in lieu of accrued and unused holidays and leave, the duration of which is determined by the applicable collective agreement.

6 Employment tribunals

6.1 How are employment-related complaints dealt with?

Employment-related claims (including those brought by both permanent and fixed-term employees and agents and self-employed workers/independent contractors) must be filed with the labour courts.

Labour court proceedings differ from regular civil court proceedings in the following ways, among others:

• A ‘fast track’ is established for employment-related claims;
• The duration of such proceedings is significantly shorter than that of regular civil proceedings;
• The formal requirements are remarkably less strict than those for regular civil proceedings:
• At the first hearing, the labour court is required to try to settle the case, providing the terms and conditions of the envisaged settlement agreement; and
• The powers of the labour courts are significantly broader than those of the regular civil courts. The labour courts are ex officio entitled to:
  • order the taking of any evidence, even in breach of regulations set forth under the law;
  • require the provision of written or oral information to trade unions;
  • order access to the workplace; and
  • examine witnesses who are prevented from examination according to the law.

6.2 What are the procedures and timeframes for employment-related tribunals actions?

Cases that are subject to labour proceedings must be brought by complaint. In this case the complainant must specifically indicate the means of proof and produce documents, on pain of preclusion of the complaint.

Once the appeal has been filed, the judge will, within five days, set a date for the discussion hearing, which must be held within the following 60 days. The defendant must enter an appearance 10 days before the hearing by filing a defence brief.

At the end of the discussion hearing, and having heard the conclusions of the parties, the judge will issue a judgment, reading out the relevant order.

A special procedure applies to appeals against dismissal for employees hired before 7 March 2015, consisting of an initial summary stage and a subsequent – possibly full-cognisance – opposition stage. In this case the action is started by filing a complaint with the competent court in the role of labour judge. The judge – having set the date for a hearing, heard the parties and omitted all formalities that are not essential to the cross-examination – will accept or reject the complaint by means of an order that is immediately enforceable.

The order may be appealed before the same court within 30 days. The appeal ends with a provisionally enforceable judgment, which can be appealed within 30 days before the court of appeal.

The complaint procedure, in which no new evidence or documents are admitted, ends with a judgment that can be appealed to the Supreme Court.

The views expressed in the article are of the Authors, the content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.