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employment law overview
italy 2021-2022
LABLAW — Studio Legale / Proud Member of L&E GLOBAL
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 1
www.leglobal.org
table of contents.
I. General overview 03
II. HIRING PRACTICES 08
III. employment contracts 10
IV. working conditions 12
V. Anti-Discrimination Laws 14
VI. PAY EQUITY LAWS 16
VII. SOCIAL MEDIA AND DATA PRIVACY 17
VIII. Termination of Employment contracts 18
IX. Restrictive Covenants 25
X. TRANSFER OF UNDERTAKINGS 27
XI. TRADE UNIONS AND EMPLOYERS ASSOCIATIONS 28
XII. EMPLOYEE BENEFITS 31
employment law overview
an alliance of employers’
employers’ counsel
counsel worldwide
worldwide 2021-2022 / italy | 2
i. general overview
1. Introduction
Italian employment laws have always been employee-friendly, reflecting the principles of the Italian
Constitution. However, the global economic downturn has forced Italian lawmakers to look at ways to enhance
flexibility within the Italian job market. The most recent Italian reform on labour law, the so called Jobs Act,
has granted more flexibility to the employers through: i) a “gradual” protections against unfair dismissals,
directly linked to the length of service; ii) the possibility under certain conditions, to downgrade employees;
and iii) the possibility, under certain conditions, to utilise for disciplinary purposes, the content of company
mobile devices granted to the employees, to stimulate new hires and attract new foreign investment into
Italy. Italy is going through important political, social and legal changes at the moment and employment
lawyers are witnessing first-hand how this impacts businesses and the Italian workforce. Italian employment
law is still a work in progress and the end product will hopefully be worthy of the prestigious label: “Made in
Italy”.
2. Key Points 3. Legal Framework
• For each industry sector there is a National In Italy, individual contracts of employment and
Collective Bargaining Agreement (hereinafter, labour relationships are governed, in order of
also, “NCBA”) that regulates the employment priority, by:
relationship.
• Companies with more than 15 employees come First. The Republican Constitution: sets forth
under the umbrella of the Workers’ Statute. general principles and regulates some issues
• Italian labour laws and National Collective concerning employment.
Bargaining Agreement provisions may only be
amended by employers in a more favorable way Second. The Civil Code: The Civil Code, enacted
for the employees. in 1942, regulates employment and labour
• The collective dismissal procedure shall be matters under Section III (“On the employment
followed when at least 5 dismissals for economic relationship”), articles 2094-2134.
reasons will be served within 120 days by a
company with more than 15 employees. Third. Laws enacted by Parliament: Italy has
• Executives are included in the calculation that extensive employment and labour legislation;
triggers a collective dismissal. the objective has traditionally been to protect
• The obligation to give a reason for entering into employees.
a fixed-term contract has been re-introduced for
such agreements, if exceeding 12 months. Fourth. Regulations issued by authorities other
• Reinstatement is no longer the sole remedy for than Parliament and the government.
unfair dismissal.
Fifth. National Collective Bargaining Agreements.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 3
Sixth. Custom and practice – The customs and As of 12th March 2016, resignations, mutual
practices of the parties to an employment terminations and their revocations must be filed
relationship apply where the issue is not governed electronically by employees, on the Government
by legal provisions or by the provisions of a collective website, following a specific procedure set forth
agreement. Moreover, those customs and practices by the Minister of Labour Decree published on 11
that are more favourable to employees prevail over January 2016. There is a heated on-going debate
legal provisions, but do not prevail over individual in Italy regarding data privacy and monitoring from
employment agreements. a distance, also considering the new law and in
anticipation of the guidelines from the relevant
Furthermore Italy, as one of the member states Authority, also at European level.
of the European Union (EU), having signed the
Treaty of Rome on March 25, 1957, is subject to EU In this regard, please note that, according to a
directives and regulations and to the decisions of Ruling of the Italian Court of Cassation issued on
the European Court of Justice. 27th May 2015, it is not unlawful for an employer to
create a fake Facebook profile in order to uncover
employees’ negligence. According to the Court,
4. New Developments the employer’s behaviour was lawful and valid
because, while always respecting the employees’
Thanks to the Jobs Act (Law no. 23/2015), for dignity and freedom, monitoring employees is
employees hired under an open-ended contract allowed if the purpose is not to evaluate the
after 7th March 2015, the so-called “employment working performance but, for example, to avoid
contract with growing protections” there is now in risk of damage to company property.
place a different set of remedies in the event of an
employee’s success in an unfair dismissal claim.
a. ‘Dignity Decree’ and its
In the majority of cases the remedy is damages, most significant provisions
which is calculated on the basis of the dismissed concerning employment
employee’s length of service with the company.
Reinstatement has now become the exception relationship
rather than the rule.
On July 14, 2018, the so-called “Dignity Decree”
As from 25th June 2015, an employer may (Law Decree n. 96/2018) was issued. Following
unilaterally change an employee’s duties and parliamentary commissions’ amendments, on
tasks to those corresponding to a lower job level August 12, 2018, Decree’s conversion law (Law no.
(note that the employee remains in the same job 96/2018) entered into force.
category, with the same salary), if the following
conditions are met: The mentioned Decree introduced very important
innovations concerning many employment law
• there have been changes to the company’s matters such as fixed-term contracts, supply of
organisational set-up, involving the job position work, and penalties in the event of illegitimate
of the relevant employee; dismissal as provided by the so-called Jobs Act
• the National Collective Bargaining Agreement (for open-ended contracts stipulated after March
provides so; 2015).
• there has been a specific agreement signed
before the Public Employment Offices. The new provisions respond to the Government
purpose of fighting the issue of unstable
As of 24th September 2015, employers are allowed employment.
to access the content of company devices given to
employees to perform their job (e.g. smart phone, Please find below a brief overview of the most
personal computer, tablet), and such content may significant reforms concerning employment
be used for the purpose of disciplinary sanctions. contracts, with specific reference to issues, which
have mostly attracted the public attention, because
of their significant impact on business organisations.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 4
In case of execution of a fixed-term contract
b. Fixed-term contracts longer than 12 months, in the absence of one of
the specific abovementioned “conditions”, the
A term of no more than 12 months may be applied
agreement is converted into an open-ended one,
to employment contracts.
as of the date in which the limit of 12 months is
exceeded.
A further term, in any case no longer than 24
months (instead of 36 months, as previously
provided by Legislative Decree no. 81/2015), may c. Transitional period
be applied only in the presence of at least one of
the following “conditions”: The new provisions apply to fixed-term contracts
stipulated after the entry into force of the Decree,
• temporary and objective needs, unrelated to the namely 14 July 2018, as well as to fixed-term
ordinary activity, for other employees’ substitute contract extensions and renewals carried out after
needs; 31 October 2018.
• requirements connected to temporary, significant
and non-predictable increases of the ordinary In summary, please find below a brief scheme of
activity. the transitional period discipline concerning fixed-
term contracts.
The above-mentioned “conditions” shall be
provided also in case of extensions of already
pending fixed-term contracts exceeding 12 months,
or in case of renewals.
Given the maximum duration abovementioned,
contract extensions cannot be more than four
(instead of the previous five, provided by Legislative
Decree no. 81/2015).
fixed-term contracts signed fixed-term contracts signed
within 13 july 2018 starting from 14 july 2018
within from
31 october 2018 1 november 2018
Maximum 12 months
36 months 36 months
term (24, only in the presence of conditions)
Extensions Maximum of 4, Maximum of 4,
maximum Maximum of 5 Conditions have to Conditions have to
number and No conditions be provided after 12 be provided after 12
conditions months months
Renewals No conditions to Conditions have to Conditions have to
conditions be provided be provided be provided
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 5
Fixed-term contracts entered into with executive’s Additional penalties have been introduced as
apprenticeships are not subject to the typical rules regards the new regulated figure of “fraudulent
regarding fixed term contracts. supply of work”. In fact, when supply of work
is carried out with the only specific purpose of
d. Covid-19 Decree Extends avoiding mandatory law or NCBA provisions, the
employment agency and the user company shall
Fixed-Term Contracts be punished with a fine equal to Euros 20, for each
employee involved and each day of labour supplied.
The August Decree (Law Decree n. 104) temporarily The same rules concerning fixed-term contract
eliminates the need for conditions, allowing transitional periods apply to supply of work.
employers to renew and extend fixed-term
contracts, for a maximum period of 12 months
and only once without giving reasons. All this until f. Fixed – term and supply of
31 December 2020; thereafter it will return to the work renewal contributions
previous regulations.
For each renewal of fixed-term contracts (also
It should be noted that both the extension and stipulated in the context of supply of work), the
renewal of fixed-term contracts are allowed within additional contribution equal to 1.4%, provided
the time limits provided by law. As the duration can by the so-called Fornero Law (Law no. 92/2012), is
only be extended up to 24 months, it will therefore increased by 0.5%, to be paid by the employer.
not be possible to exceed, in total, the allotted
24-month period. g. Penalties for illegitimate
dismissal
e. Supply of work
The “Dignity Decree” increased penalties applicable
A mandatory maximum number of fixed-term to illegitimate dismissal of employees hired after
supplied employees has been introduced for March 7, 2015 (as provided by Legislative Decree
user companies. In fact, given any different no. 23/2015). Under the new legislation, the
NCBA provision, the user company is entitled compensation due to dismissed employees will
to a maximum number of fixed-term supplied range between a minimum of 6 and a maximum
employees, which shall not exceed the percentage of 36 months’ salary, taking into consideration the
of 30% of the total number of its open-ended length of service (while, in the previous legislation,
contract employees. the indemnity ranged between a minimum of
4 and a maximum of 24 months’ salary). The
The new provisions concerning maximum terms (12 abovementioned amounts are halved (within the
months or 24 months only in the presence of the maximum limit of 6 months) for dismissals under
so-called “conditions”), extensions and renewals, the so-called “mandatory protection” (applicable
have also been transposed to fixed-term contracts to companies employing up to 15 employees).
stipulated between employment agencies and
employees. Please note that Decree’s conversion
law (Law no. 96/2018) has expressly clarified that h. Youth employment
the abovementioned “conditions” apply only to incentives
user companies: for this reason, according to first
interpretations of the law provision, employment Up to 2020, employers are entitled to benefit from
agencies shall indicate in their fixed-term contracts social security contribution reductions of 50%,
the “conditions” adopted and communicated in case of hiring under 35 employees with open-
by the user company. Failure to comply with the ended employment contracts. The reduction is
abovementioned provisions leads to the conversion applied on a monthly basis, for a maximum period
of the fixed-term contract into an open-ended one, of 36 months, and the maximum amount of the
which will come to be held by the employment reduction is 3000 Euros on an annual basis.
agency, as the “formal employer” of the supplied
employee.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 6i. Occasional Work
Companies operating in the tourism sector and
employing up to 8 employees can now benefit from
the occasional work - voucher system.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 7iI. HIRING PRACTICES
1. Requirement for 3. Limitations on
Foreign Employees to Background Checks
Work According to Article 8 of Law 300/1970 (the
Law), prior to hiring and during the employment
There are no specific rules related to the relationship, the employer may not carry out
employment of European Union (“EU”) citizens as any checks or investigations, even through
they can move and work in every EU Country, free third parties, regarding the employee’s political
of restrictions. On the other hand, limitations are opinions, religious beliefs, union membership,
provided by the law with respect to non-EU citizens. or on any matters which do not strictly relate to
Visas and different work permits are necessary in the employee’s professional skills. The reasoning
the following situations: behind such provisions is to protect the employee’s
privacy and prohibit any interference by the
• Hiring of non-EU citizens: their employment can employer in their private lives and at the same time
start only after a specific immigration procedure preventing any information-gathering investigation
is completed, which includes complying with the that may then trigger discriminatory action.
limitation of the annual quotas. After the annual
quotas are established, a non-EU citizen must Therefore, any such investigation is always
request a work visa, assuming that they have prohibited, as is any investigation of facts that
been offered employment in Italy. cannot be objectively used to demonstrate the
• Secondment in Italy of non-EU citizens: this is employee’s skills, competence, experience and
not subject to annual quota limitations, but compatibility with the specific duties to be assigned
should be activated on the basis of a special and to him/her. This rule also applies to checks carried
more simplified procedure, strictly related to the out through social networks, which are becoming
purposes of the secondment in Italy. common among HR departments and head-
hunters.
2. Does a Foreign This rule also applies to checks carried out through
Employer need to social networks, which are becoming common
among HR departments and head-hunters. Please
Establish or Work see below a list of background checks that are
allowed:
through a Local Entity
to Hire an Employee? • verification of academic qualifications and
credentials;
No, it does not. The foreign employer needs to file • verification of employment history;
for an Italian tax number and elect a domicile in • verification of personal references identified by
Italy. Of course, the situation should be evaluated the applicant;
having regard to the activities to be performed. • search of motor vehicle records/validation of
More specifically, should the foreign employer be driver’s license: only allowed if required for the
active in the trade sector, with the employee having job and if there is the consent of the candidate
to perform bargaining activities, the risk of the (the Company may ask the candidate to show his
constitution of a stable organisation would be high driving license).
and would have an impact under a tax perspective.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 8• criminal record search: only admissible if
required by the nature of the duties (i.e. where
the job involves handling money) and if there is
the consent of the candidate;
• drug/alcohol screening: allowed if performed
by public medical centers (not by doctors hired
by the employer) and only if carried out on
candidates that are going to perform high-risk
duties, as listed by Labour Minister Decree no.
309/1990.
4. Restrictions on
Application/Interview
Questions
The questions shall be held within the limits of
the investigation and of course should avoid any
kind of discrimination. For example, employers are
prohibited from asking a female candidate if she
is planning a pregnancy or intends to have more
children, as well any questions regarding sexual
orientation, gender identity, etc.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 9iII. EMPLOYMENT
CONTRACTS
1. Minimum As the duration can only be extended up to 24
months, it will therefore not be possible to exceed,
Requirements in total, the allotted 24-month period.
European Union Directive No. 533/91 has
been implemented in Italy and requires that
3. Trial Period
information on the main terms and conditions of
Employment contracts can provide for a trial period
employment relationships be evidenced in writing
(“periodo di prova”). During this period each party
in the employment contract and provided to the
is free to terminate the contract without notice and
employee within 30 days of hiring. In general,
without the payment of any indemnity in lieu of such
individual employment contracts must specify:
notice. The duration of the trial period is set by the
applicable NCBA and varies according to different
• parties to the employment agreement;
categories of employees (maximum duration being
• the starting date of the employment and the
6 months for high level employees). Article 2096
duration of the trial period, if any;
of the Civil Code requires that the trial period be
• the expiration date, if the employment is for a
written in the employment contract and must be
fixed term (where permitted by law);
entered into on the first day of the employment at
• the salary, method for calculation of the salary,
the latest. Failing to meet this requirement renders
frequency of payment, and any particular term
the trial period null and void and the employment
or condition related to the salary and fringe
is considered fully effective as of the beginning.
benefits;
• the working hours;
• the annual entitlement to paid holiday leave; and 4. Notice Period
• the employee’s duties and the related work
“category” (Art. 2095 of the Civil Code). Upon termination of an open-ended employment
contract, unless the contract is terminated for
2. Fixed-term/Open- “just cause” (a reason that does not allow the
continuation of the employment relationship)
ended Contracts both the employer and the employee are entitled
to a notice period, the duration of which varies
An employment contract normally has an unlimited according to the employee’s length of service
duration. and professional level and as established in the
applicable NCBA. In case of termination due to
The August Decree (Law Decree n. 104) temporarily a decision of the employer, it can exempt the
eliminates the need for conditions, allowing employee from working during the notice period
employers to renew and extend fixed-term while paying a corresponding payment in lieu of
contracts, for a maximum period of 12 months notice. In case of termination due to a decision of
and only once without giving reasons. All this until the employee, if he/she resigns without giving the
31 December 2020; thereafter it will return to the notice period provided by the applicable collective
previous regulations. It should be noted that both agreement (with the exception of resignation for
the extension and renewal of fixed-term contracts “just cause”, where the notice is not due by the
are allowed within the time limits provided by law. employee) the employer has the right to withhold
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 10the amount of the payment in lieu of notice from
the payments that the employee is entitled to
receive as a consequence of the termination of the
employment relationship.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 11IV. WORKING
CONDITIONS
1. Minimum Working 3. Maximum Working
Conditions Week
In Italy, the most important provisions included in The maximum length of the working week is
an employment contract are provided by the law established by the collective agreements. However,
and by the applicable NCBA. In particular, NCBA the average weekly working time cannot exceed 48
sets the terms and conditions of employment, hours, inclusive of overtime. The average working
amongst which are: categories and related job time must be calculated over a period of 4 months;
descriptions; duties and obligations; minimum however, the applicable NCBA can extend that term
wages; job retention rights during absences due for objective, technical or organisational reasons.
to illness; salary increases due to length of service;
termination, resignation, criteria for calculation of
the severance pay; night work; maternity leaves; 4. Overtime
holidays.
The needs of a particular company may, in
exceptional circumstances or on an occasional
2. Salary basis, require employees to work beyond their
“usual working hours.” Overtime is regulated by
Salary is usually paid at the end of the working law and by the applicable collective agreement.
month, as established in the company policies Article 5 of Legislative Decree no. 66/2003 provides
or by the NCBA, with the employer deducting that normally the NCBA governs the conditions
all applicable social security contributions and of overtime work and that, in the absence of any
withholding taxes. Italian law explicitly provides provisions of the collective agreement, overtime is
that the salary paid to employees must be stated only permitted subject to the agreement between
in a pay slip (produced by the employer or by a the employer and the employee and for a period
third party on the employer’s behalf) specifying not exceeding 250 hours per annum.
the period of service which the salary refers
to, the amount and the value of any overtime, Finally, the law provides that overtime is calculated
together with all the elements that constitute the separately and paid by way of an increase in salary
amount paid, as well as all withholdings made in pursuant to the NCBA, which may in any case
accordance with Italian law. Moreover, Italian law permit that overtime be compensated with time
provides for an annual 13th payment, paid once a off in addition or as an alternative to the salary
year on the occasion of the Christmas holidays that increases that may be due.
usually corresponds to one month’s remuneration.
In addition, NCBA or even individual contracts may
provide for the payment of the 14th payment,
usually paid in July.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 125. Health and Safety in • nomination of the doctor in charge, in the cases
provided for by the decree;
the Workplace • appointment of the employees in charge of fire
prevention, rescue, first aid and management of
The duty of the employer to provide safe conditions emergencies;
for workers can be found in articles 32, 35, 38, • providing employees with adequate equipment
41 of the Italian Constitution and article 2087. and gear for personal protection;
When managing and operating its business, the • keeping a chronological record of work injures
employer is required to adopt all measures that— detailing absences from work for at least one day;
in light of the specific type of work performed, past • instructing employees to abandon the workplace
experience, and techniques used—are required to in the event of a serious, immediate and inevitable
protect the psychological and physical wellbeing of danger; and
the employees. • organisation of security and hygiene signage.
The main provisions relating to health and safety in The employees shall be informed regarding the
the workplace are based on the following general following: safety instructions and risks deriving from
principles of prevention, including: the activity carried out by the company; specific
risks related to the workplace and prevention
• elimination or reduction of risks at the source; measures adopted by the company; first aid, fire
• updating safety measures in relation to the prevention and evacuation procedures; and names
technological evolution; of the employees in charge of fire prevention,
• safety of psychological and physical health of evacuation and first aid. The employer shall also
workers; train the employees in relation to safety and health
• attention to the health conditions and skills of in the workplace. In particular, the training shall
workers for the purpose of job assignment; and be sufficient and adequate, updated, free, and
• surveillance of workers to monitor their carried out during working time in cooperation
adherence to safety measures and use of personal with unions. The employees shall take care of their
and communal protective gear provided by the own safety and health, and of the safety and health
employer. of the other persons present in the work place, by
means of:
In addition to these general principles, there are
some specific duties that the employer must fulfill: • following instructions received by the employer;
i) evaluation of risks; ii)identification of protective • correctly using machines, tools, work equipment,
and preventative measures; iii) preparation of and personal and communal safety devices;
the plan for the improvement of safety at the • immediately informing the employer about any
workplace; and iv) other duties of the employer deficiencies of the safety devices, as well as any
include: other dangerous situation of which they become
aware;
• nomination of the person who is responsible to • not removing safety devices without
perform the Prevention and Protection Service authorisation; and
(inside or outside the company); • utilising sanitary controls required by law.
• nomination of the Officer in charge of the
Prevention and Protection Service; Any employee’s breach of the above obligations
• preparation of a document, including the could result in disciplinary sanctions.
evaluation of all the risks for safety and health
connected with the activity of the company,
protective and preventative measures adopted
in light of the risk evaluation, and a plan to
improve workplace safety (the document should
be prepared together with the Prevention and
Protection Officer, and the doctor in charge,
where health surveillance is mandatory);
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 13V. ANTI-DISCRIMINATION
LAWS
1. Brief Description of organisations. In the case of occupational activities
within churches or other public or private
Anti-Discrimination organisations, the ethos of which is based on
religion or belief, a different treatment based on
Laws a person’s religion or belief is not discriminatory
where, by reason of the nature of the particular
Prohibitions against discrimination have been in occupational activities concerned or of the context
place since the 1970’s when the Workers’ Statute in which they are carried out, a person’s religion
(Law No. 300/1970) came into force and prohibits or belief constitutes a genuine and determining
any kind of discrimination based on: occupational requirement, is legitimate and the
requirement is proportionate. In addition, an
• gender; employer is obliged to employ a fixed number of
• political opinions; disabled people, depending on the size of the
• union-related activity; company (Law No. 68 of March 12, 1999).
• religion;
• race;
• language; 2. Extent of Protection
• disability;
• age; Several laws were recently passed, implementing
• sexual orientation; and European Directives on Equal Treatment, Racial
• personal belief. Equality and Employment Framework. Such laws
make it unlawful for an employer to discriminate in
Furthermore, employers may not: the processes of: hiring, promoting, remuneration
and termination or with regard to admission to a
• make employment conditional on the fact that training or apprenticeship program. Furthermore,
the employee is or is not a member of a Trade direct and indirect discrimination are prohibited.
Union or that he or she stops being a member; or Direct discrimination occurs when a person is
• dismiss an employee, or discriminate against him/ treated less favorably than another person in a
her when assigning a job, when changing a place comparable situation on one of the prohibited
of work, in disciplinary procedure or prejudice grounds. Indirect discrimination occurs when an
him/her because of the employee’s membership apparently neutral provision, criterion, practice,
in a trade union association, because of the agreement or conduct would put someone at
employee’s union-related activity or because the a particular disadvantage compared with other
employee has participated in a strike. persons, on one of the prohibited grounds.
The same anti-discrimination provisions
abovementioned apply to religious discrimination
3. Protections Against
as well. However, according to Legislative Decree Harassment
No. 216/2003, special conditions based on religious
convictions existing within religious organisations The same anti-discrimination provisions
could be allowed if such convictions are necessary abovementioned also apply to harassment.
to perform the working activity within these Harassment is unwanted conduct based on a
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 14prohibited ground with the purpose or effect Treatment can issue codes of conduct and has the
of violating the dignity of a person and creating power to ask employers to provide information so
a hostile, degrading, humiliating or offensive that it can monitor the equal treatment of men
environment. Sexual harassment occurs when and women. The Commission for Racial Equality
unwanted conduct with a sexual connotation has the power to support employees during a
(expressed in physical, verbal or non-verbal ways) claim, investigate discriminatory conduct, ask the
takes place with the purpose or effect of violating employers for information and documents, and
the dignity of a person and of creating a hostile, give advice and recommendations.
degrading, humiliating or offensive environment.
Legislative Decree No. 198/2006 provides that any
agreement, unwelcome conduct or gender-related
4. Employer’s act that takes place with the purpose or effect of
Obligation to violating the dignity of a person and of creating
a hostile, degrading, humiliating or offensive
Provide Reasonable environment is null and void if it is in response to a
complaint or legal action brought by the employee
Accommodations with the aim of enforcing equal treatment.
According to case law, when the perpetrator of the
There are no specific labour laws putting an discriminatory conduct is not the employer but a
obligation on the employer to provide reasonable colleague of the worker who was offended, it is
accommodations of any kind, other than those possible that this latter person may be considered
required by law related to health and safety at liable for damages deriving from the discrimination.
work. Employers, like public offices, must provide
the infrastructure needed to ensure that disabled
persons/employees have access to the offices, such
as stairs adapted for the disabled and/or elevators,
disabled toilets etc. Italian law does not oblige
employers to provide specific accommodations for
religious purposes of any kind.
5. Remedies
An employee who has been discriminated against
may sue the employer before the Labour Court,
under an ordinary process or an emergency one,
claiming for monetary and non-monetary damages.
There is no statutory minimum or maximum
amount of damages: it is at the Judge’s discretion.
The Labour Court may order the employer to stop
the discriminatory conduct, to remove the effect
of the unlawful conduct, and order a plan to avoid,
within a certain period of time, any repetition of
the discriminatory conduct.
The Equal Opportunities Commission has the power
to promote good anti-discriminatory practices.
It can monitor and, in the case of discriminatory
conduct, ask the employer to arrange a program to
remove the discrimination in order to resolve the
matter. It can represent the employee in court and
bring proceedings against the employer in cases of
collective discrimination. The Commission for Equal
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 15VI. PAY EQUITY LAWS
1. Extent of Protection Code, which will then process the data collected
and transmit it to the Ministry of Labour. However,
in Italy employers are not directly required to draw
There is no general principle of ‘equal pay for
up an action strategy for reducing gender pay gaps
equal work’ in Italy that is not specifically linked to
revealed by this report (if any). Nevertheless, under
discriminatory grounds; meaning that employees
Art. 37 of the Code, if discrimination is found, the
can receive different salaries even if they perform
company can be required to produce an action
the same duties, as long as the basis for the pay
strategy aimed at reducing the gender pay gap
difference is not discriminatory. In fact, there is
within a maximum of 120 days.
a general non-discrimination principle (Art. 3 of
the Italian Constitution) under which any act or
Please note that Italian law provides for
agreement is null and void if it directly or indirectly
administrative penalties for companies that do
provides for different treatment on the basis of
not comply with their reporting duty or where
factors such as race, ethnicity, language or gender.
discrimination is found. Furthermore, according to
Art. 40 of the Code, the burden of proof that there
However, there is a regulation on gender pay
is no discrimination is placed on the employer if
equality that prohibits the unequal treatment
the employee cites factual elements (including
of employees based on their gender, including
those deriving from statistical data and relating
in relation to remuneration. In particular, Art.
to remuneration) capable of establishing grounds
28 of Legislative Decree 198/2006 (‘prohibition
for the presumption of the existence of gender
on wage discrimination’), entitled the ‘code of
discrimination. In view of this rule, even if the
equal opportunities between men and women’
results of a report do not in themselves directly give
(hereinafter, the ‘Code’), prohibits all direct and
employees grounds for filing a claim, employees
indirect discrimination relating to any aspect or
could use them as evidence of discrimination.
condition of remuneration in relation to the same
Therefore, particular care should be taken when
job or a job considered as having the same status.
drafting this type of report.
Further to that, Art. 29 of the Code, ‘prohibition
on discrimination concerning work and career 3. Enforcement/
progression’, prohibits any discrimination based on
gender with regard to the assignment of a job level, Litigation
tasks or career development or advancement.
There is also a regulation in Italy relating to the There is no significant enforcement of or litigation
obligation to report gender pay differences. concerning equal pay practices in Italy.
2. Remedies
Under Art. 46 of the Code (‘reporting on the
personnel situation’), public and private companies
employing over 100 people are required to draw
up a report at least every two years, containing
information on male and female employees with
specific reference to their working conditions and
especially their overall remuneration. The report
must be shared with union representatives and with
the competent public authorities established by the
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 16VII. SOCIAL MEDIA
AND DATA PRIVACY
1. Restrictions in showing him and other colleagues, along with
offensive comment against the company. According
the Workplace to the Judge, such behavior is considered as clearly
breaching the fundamental duty of diligence,
With reference to the company devices granted to honesty and loyalty required by the employees,
the employees for work purposes, the employer therefore the disciplinary dismissal was lawful and
is entitled to block Internet access, or access to justified.
certain websites only and/or social networks, for
the entire working day or during certain times.
a. Can the employer monitor,
access, review the employee’s
electronic communications?
The employer has no control over employees’
personal devices. However, should the employee
use his/her personal device during working time
and/or in violation of the relevant company policy,
this may trigger disciplinary action.
2. Employee’s Use
of Social Media
to Disparage the
Employer or Divulge
Confidential
Information
According to the specific circumstances of the case
in question, employee’s utilisation of social media
to disparage the employer or divulge confidential
information may trigger disciplinary action (even
dismissal) and may constitute a crime as well.
On 1 August 2014, the Tribunal of Milan upheld
a disciplinary dismissal as valid, based on the fact
that the employee posted on Facebook a picture
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 17VIII. TERMINATION OF
EMPLOYMENT CONTRACTS
1. Grounds for The ‘Relaunch Decree 2’ (Law Decree n. 104
released on 14 August 2020) specified that the
Termination extension of the dismissal ban applies to employers
who have not fully benefited from the Wage Fund
Under Italian law, any termination of employment or exemption from social security contributions,
must be justified. The reasons to terminate an for both collective and individual dismissal
employment contract can be divided in three main procedures initiated after 23 February 2020. The
categories: only exemptions to the dismissal ban include:
• Objective justified reasons - which are related to • Definitive termination of the production activity,
the abolition of a job position due to a company’s which implies however, the liquidation of the
economic situation regarding production, work company itself without the possibility - not even
organisation, or proper functioning; partially - to continue production;
• Subjective justified reasons - which occur when • Mutual termination of the employment
the employee commits a breach of his/her relationship with the employee in cases where
contractual obligations or is guilty of negligence the company’s collective agreement provides an
in the performance of his/her duties, but the incentive to leave. The employee, in this case,
behavior is not so serious as to constitute a has the freedom to decide whether or not to
dismissal for just cause; or accept the employer’s proposal. If the proposal
• Just cause (“giusta causa”) – that indicates any meets with a positive outcome on both sides,
serious misconduct or breach that renders the the employee has the possibility of obtaining
continuation of the employment impossible, unemployment benefits under Naspi;
including, theft, riot, serious insubordination, and • If the definitive termination of the company is
any other behavior that seriously undermines the ordered and there is no possibility to carry out a
fiduciary relationship with the employer. temporary exercise, it is possible to dismiss the
employees for bankruptcy of the company itself.
a. The Covid-19 Dismissal Ban
2. Collective Dismissals
In response to the Covid-19 pandemic, the Cura
Italia Decree (Law Decree 18/2020) introduced Under Italian law, a collective dismissal occurs
a ban on individual terminations for economic when at least five dismissals are served in the same
reasons and collective dismissals. The ban, entered business unit or in more units within the same
into force on 17 March 2020, was extended until district and in the time frame of 120 days, due to
31 December 2020 and the Italian Government has reduction, transformation, or closure of business.
recently announced that it will further extend the
ban on dismissals until 31 March 2021. According to Law 223/1991, employers with
more than 15 employees must follow a specific
Any termination in breach of the ban is considered information and consultation procedure involving
null and void. It is therefore possible to dismiss only the Trade Unions with regard to collective
for just cause and/or during the trial period. dismissals. The employer must notify, in writing,
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 18the competent employment office, the employees’ agreement reached during the negotiations or, in
staff representatives (RSA - “rappresentanze the event of a negative outcome, the criteria laid
sindacali aziendali” or RSU - “rappresentanze down by Law 223/1991 (family circumstances;
sindacali unitarie”) and the respective Trade Unions length of service; technical, production or
of the decision to proceed with the collective organisational requirements). Upon dismissal, all
dismissal. In the absence of the above-mentioned employees are entitled to the payment of the usual
employee representative bodies, notice shall be severance payments, including the notice period or
given to the “comparatively more representative” the indemnity in lieu thereof.
trade associations.
Please note that by the Ruling issued on 13th
The written notification should explain: February 2014, the European Court of Justice has
declared that the Italian legislation on collective
• the reasons for the redundancy; dismissals does not meet the legal criteria set out
• the technical, organisational or production by European Directive no. 98/59/CE, because it
reasons which necessitate the redundancy; does not involve executives.
• the number of employees to be made redundant;
• the timetable of the redundancy plan; Thus with the passing of Law no. 161/2014 the
• possible measures planned for the occupational Italian legislature has for the first time provided
consequences of the redundancy plan; and that executives have to be included in the
• the calculations of economic awards in addition calculation that triggers a collective dismissal,
to those provided by the law or by the applicable and that companies will need to set up a separate
collective agreements. negotiating table with the executives.
Within seven days from the date of the notice’s
receipt, upon request of the Union the parties 3. Individual Dismissals
must meet (depending on the number of
employees involved in the redundancy, for up to Dismissal must be given in writing and must detail
45 days) to discuss and analyse the possibility of the reasons on which it is based.
avoiding dismissals. If the parties do not reach an
agreement, the company must give written notice Whenever a dismissal is due to an employee’s
to the competent employment office regarding conduct (constituting either just cause or justified
the results of the negotiations, specifying the grounds, depending on the gravity), an employer
reasons for the negative outcome. Consequently, must follow a specific disciplinary procedure
the competent employment office convenes the set forth by art. 7, Law May 20, 1970, no. 300
parties for a further negotiation, which cannot, (the so called “Workers’ Statute”), according to
depending on the number of employees involved which a letter containing the allegations must be
in the redundancy, last longer than 30 days. delivered to the employee outlining the facts and
circumstances where the company sees the breach
If the company and the Trade Unions do not reach of his/her obligations and giving the employee a
an agreement, or if they reach an agreement before term of no less than 5 days of receipt of the letter to
the deadline, the employer is allowed to serve present, either in writing or orally, his/her possible
the dismissals by giving written notice to each of justifications, and only after such term has expired
the employees involved. Moreover, the employer a letter of dismissal may be validly served.
should provide the competent employment offices
and the Trade Unions with a written list of the Moreover, whenever a dismissal is based on
dismissed employees, stating their names, place economic reasons a mandatory pre-emptive
of residence, qualifications, length of service, age, consultation phase must be carried out by
family dependents, and a detailed description of companies employing more than 15 workers,
the selection criteria applied for the dismissal of before the dismissal becomes effective.
each employee.
According to the Fornero Reform, for the purposes
The selection of the employees to be dismissed of validly serving the letter of dismissal, an employer
should follow the criteria provided by the is bound to inform the local Labour Office of its
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 19intention to terminate the employment, detailing reasons, a specific disciplinary procedure must
the reasons on which the dismissal is founded, as be followed by the employer before serving the
well as the possible measures developed to the dismissal.
extent of easing the reallocation of the employee.
The same communication needs to be copied to a. Is severance pay required?
the concerned employee as well.
Italian law provides for the payment of a deferred
The Labour Office should summon both parties form of remuneration, otherwise known as
within seven days, running from the date of receipt, the severance payment (“Trattamento di Fine
by the administrative office, of the communication Rapporto” or TFR). Along with other minor
by the employer and the pre-emptive procedure statutory termination amounts, the TFR must be
must be terminated within twenty days, which paid to employees whenever an employment
may be suspended for a maximum period of fifteen contract is terminated, irrespective of the cause
days in case of documented unavailability of the of termination. The amount of the TFR varies
employee (e.g. in case of sickness). depending on the employee’s salary and length
of service (it is approximately equal to 8% of the
Thus, the overall maximum duration of the pre- yearly gross salary per each year of employment).
emptive mandatory attempt at an out of court Therefore, upon termination of their employment,
settlement is equal to forty-two days (7+20+15). employees are entitled to:
However, the terms may be increased upon
agreement by the parties. • payment of the TFR;
• payment of holidays/paid permits accrued and
If no settlement is reached between the parties, not used;
or on expiry of the term for the procedure • payment of 13th and 14th salary installments pro
above, the employer is free to serve the letter of rata, if applicable; and
dismissal, that will be effective retrospectively, • a notice period if the dismissal is not for “just
to the opening of the pre-emptive phase (i.e. cause”. If the employer exempts the employee
from the communication by the employer to the from working during the notice period, the
Labour Office), notwithstanding the employee’s employee must receive a corresponding payment
entitlement to the notice period or payment in lieu in lieu of notice, which is equal to the normal
thereof. salary (plus social security contributions thereon)
that would have been paid during the notice
Please note that the obligation of such a pre- period.
emptive procedure is not required in case of
dismissal of employees hired after 7 March 2015,
through the so-called “employment contract with 4. Separation
growing protections”.
Agreements
Different rules apply to the dismissal of dirigenti
(executives). The executive’s dismissal is deemed At the termination of the employment relationship,
to be justified only if it is as a result of: the parties may enter into a separation agreement
providing a mutual, full and final waiver of any
• objective reasons related to the employer’s claims related to the employment relationship.
economic, organisational and production-related
needs; or a. Is a Separation Agreement
• subjective reasons related to performance.
required or considered best
In the case of particularly serious misconduct the practice?
dirigente can be dismissed for just cause. In this
event, the dismissal is effective immediately and The parties are not obliged to enter into a separation
the dirigente is not entitled to any notice period. agreement, but we consider it as best practice in
Moreover, whenever a dismissal is due to subjective order to avoid future claims and lawsuit.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 20b. What are the standard
provisions of a Separation
Agreement?
Please find below the standard provisions of a
separation agreement:
• full waiver from the employee of any potential
claim of any kind related to, or connected with the
employment relationship, including its execution
and its termination, and to the directorships or
any other appointment held for the company;
• acceptance of the waivers by the employer,
waiving any kind of claim against the employee,
with the exception of fraud or gross misconduct
unknown at the time of the settlement;
• incentive to leave and/or compensation to the
employee in return for the separation agreement;
Please note that separation agreements must be
signed before the Public Employment office or
before the Panel of Conciliation of the Trade Union
chosen by the parties, in order to be final and
indisputable.
c. Does the age of the
employee make a difference?
The age of the employee may help the parties reach
an agreement. Should the employee dismissed be
near retirement, this may be relevant in negotiating
the amount of leave incentive.
d. Are there additional
provisions to consider?
Separation agreements usually provide that the
employer pays the legal fees (or a contribution
towards them) incurred by the employee and
related to the negotiation of the agreement. Also,
the parties may provide restrictive covenants
and regulate minor items such as the employee’s
right to keep the phone number and/or any other
company device, or the company car.
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 215. Remedies for
Employee Seeking to
Challenge Wrongful
Termination
Under Italian law, if an employee were to win a
case for unfair dismissal, the remedy in most cases
would be damages of between 12- and 24-months’
salary, depending on the gravity of the ‘unfairness’.
In some particular cases the remedy could be
reinstatement (discrimination or in-existence of
facts on which the dismissal is grounded). Please
find below the legal framework (pre and post
reform) related to the remedies that employees
have against wrongful dismissals:
companies with no more than 15 employees
employees hired before 7 march 2015
reason remedy
Dismissal null and void Reinstatement (or 15 months’ salary) + damages
(retaliatory, oral and so on) equal to the salary that would have been paid
from the date of dismissal until reinstatement
(min. 5 months’ salary)
Dismissal for just cause or subjective/objective Damages ranging between 2.5 and 6
justified reason held as unfounded months’ salary
employees hired after 7 march 2015
reason remedy
Dismissal null and void Reinstatement (or 15 months’ salary) + damages
(retaliatory, oral and so on) equal to the salary that would have been paid
from the date of dismissal until reinstatement
(min. 5 months’ salary)
Dismissal for just cause or subjective/objective Damages equal to 1 months’ salary for each
justified reason held as unfounded year of length of service within the company
(max 6 months’ salary)
Dismissal for just cause or subjective/objective Damages equal to 0.5 months’ salary for each
justified reason with formal defects year of length of service with the company
(max 6 months’ salary)
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 22companies with more than 15 employees
employees hired before 7 march 2015
reason remedy
Dismissal null and void Reinstatement (or 15 months’ salary) + damages
(retaliatory, oral and so on) equal to the salary that would have been paid
from the date of dismissal until reinstatement
(min. 5 months’ salary)
Dismissal for just cause or subjective justified Reinstatement (or 15 months’ salary) + equal to
reason where the allegations are not existent the salary that would have been paid from the
or punished with a minor sanction according date of dismissal until reinsatetment (max 12
to NCBA; Dismissal for objective justified months’ salary)
reason held as evidently not existent
Dismissal for just cause or subjective/objective Damages ranging between 12 and 24
justified reason held as unfounded months’ salary
Dismissal for just cause or subjective/objective Damages ranging between 6 and 12
justified reason with formal defects months’ salary
employees hired after 7 march 2015
(When a company with no more than 15 employees on 7th March 2015, exceeds such
threshold through new employees hired, on open-ended basis, after 7th March 2015, the
protection system described below will then apply to all its open-ended employees, also
those hired before 7th March 2015)
reason remedy
Dismissal null and void Reinstatement (or 15 months’ salary) + damages
(retaliatory, oral and so on) equal to the salary that would have been paid
from the date of dismissal until reinstatement
(min 5 months’ salary)
Dismissal for just cause or subjective justified Reinstatement (or 15 months’ salary) + damages
reason where the fact alleged is not existent equal to the salary that would have been paid
from the date of dismissal until reinstatement
(max 12 months’ salary)
Dismissal for just cause or subjective/objective Damages equal to 2 months’ salary for each
justified reason held as unfounded year of length of service within the company
(min 6 max 36 months’ salary)
Dismissal for just cause or subjective/objective Damages equal to 1 months’ salary for each
justified reason with formal defects year of length of service within the company
(min 2 max 12 months’ salary)
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 236. Whistleblower Laws entertained. According to mandatory law, formal
whistleblower channels must be available to i)
directors, managers or other subjects acting on
Whistleblowing was introduced for the first time in
behalf of the company or one of its organisational
Italy by means of Law N. 179 November 30th 2017,
units; and ii) persons subject to the direction
published in the Official Gazette on December 14th
or supervision of those in part i) above. As such,
2017. The new legislation established that public
whistleblower programs need not be available to
and private sector employees must be protected if
self-employed contractors, external consultants,
they report illegal practices within their company/
or others, though from a practical point of view
organisations.
there may be good reasons to include such persons
within the scope of a whistleblower program.
The law states that employees are protected
from dismissal, disciplinary action or any form
Complaints must be grounded on “accurate and
of discrimination/retaliation as a consequence
consistent elements of fact”(Art. 2-bis, lett). a,
of having flagged any unlawful practices to the
Decree 231). Law No. 179/2017 provides protection
authorities. However, the Law No. 179/2017
against retaliation by permitting whistleblowers to
does not require firms to adopt a compliance or
raise allegations of retaliatory and discriminatory
whistleblower protection program. Specifically,
acts arising from whistleblowing activities to the
pursuant to the new paragraph 2-bis of Article
Senior Labour Inspectorate (Ispettorato del Lavoro)
6 Decree 231 (ruling the company liability),
personally or through a labour union.
compliance programs shall include a whistleblowing
procedure so that officers and employees can
Moreover, in case of disputes concerning
report violations of Decree 231.
disciplinary measures, dismissals, transfers, or
demotions imposed after the employee reported
As a consequence, companies that have adopted
the complaint by means of the whistleblowing
compliance programs in accordance with Decree
procedure, the new law requires the employer to
231 should evaluate whether their policies
demonstrate that the measure is based on grounds
comport with Law No. 179/2017, and companies
different from the reporting. Law No. 179/2017
seeking to implement compliance programs should
does not specify how whistleblower complaints
incorporate whistleblower protections as part
must be escalated or who within an organisation
of those policies. The law does not provide for a
must review them. However, the structure of
specific procedure for the private sector for making
the law strongly suggests that such complaints
a qualifying or protected disclosure.
should be escalated to the Compliance Program
Supervisory Body (Organismo di Vigilanza) that
However, Law No. 179/2017 includes specific
Decree 231 requires companies to adopt, as part of
requirements for qualifying whistleblower policies.
qualifying compliance programs. As an alternative,
Specifically, a compliance program must provide
the Organismo di Vigilanza may deputise an
for:
appropriate officer or internal function to receive
and evaluate whistleblower complaints.
• more than one whistleblowing channel able to
protect a whistleblower’s identity, of which at
least one has to be computerised;
• the prohibition on acts of discrimination or
retaliation against whistleblowers;
• disciplinary measures for those who retaliate
against a whistleblower and for the whistleblowers
who intentionally, or with gross negligence, file
false or unsubstantiated reports of violations.
The law also requires that companies ensure
the confidentiality of a whistleblower’s identity
to the extent permitted by Italian law. However,
anonymous whistleblower complaints are not
employment law overview
an alliance of employers’ counsel worldwide 2021-2022 / italy | 24You can also read
