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Year in review

There were no new structural reforms in employment law in 2022. The political, social and economic sectors focused, in particular, on the following topics:

1. recovery from the covid-19 pandemic, seeking to re-establish the ideal conditions for a gradual and integral return to the working patterns that existed before the pandemic and to the usual workplaces. However, efforts were made to maintain and prolong smart working, and thus much of what was implemented during the covid-19 period, for all those workers defined as ‘fragile’ and for those with children under the age of 14 or with severe disabilities;
2. greater protection of the worker with reference, in particular, to the transparency of the contractual conditions from the commencement date of the labour relationship;
3. further speeding up of the labour proceedings and the introduction of the ‘assisted negotiation’; and
4. greater protection for employees who report any wrongdoings that have taken place in the work environment.

i Recovery from covid-19 and extension to emergency smart working regulations

During the covid-19 pandemic, the government implemented a series of tools and support to deal with the health emergency, which involved every sphere of individual life, including at work.

Following the pandemic, there has been an attempt to come back to normal working life with a gradual return to the workplace, increasingly reducing the use of smart working (a key measure during the pandemic).

However, smart working is still considered indispensable for individuals who are defined as ‘fragile’ or with children, or both, and, for this reason, measures taken during the pandemic have been extended for these individuals. Furthermore, simplified ways for employers to report the use of smart working to the authorities have been implemented.

The term ‘fragile workers’ includes all individuals who have immunodepression, oncological pathologies, illnesses requiring life-saving treatment and severe handicaps.

In particular, the Reopening Decree, converted into Law No. 52 of 19 May 2022, introduced a series of anti-contagious measures for a safe return to the workplaces but, at the same time, extended the modality of the smart working for fragile workers.

Another extension was introduced by the Aid Decree bis, which was converted into Law No. 142 of 21 September 2022 and implemented other special income support instruments (in particular, new bonuses for families and companies against high energy prices and 110 per cent tax deduction of expenses incurred for modernisation and renovation of buildings) and extended smart working until 31 December 2022 for fragile workers and parents with children under the age of 14.

Following these multiple deferrals, the new Thousand-Extensions Decree now provides that fragile workers and parents with children under the age of 14 may use smart working as a normal and non-exceptional way of working until 30 June 2023.

In addition to the above, Law No. 122 of 4 August 2022, which converts the Simplification Decree (No. 73 of 21 June 2022, regarding urgent measures on tax simplifications and work permit issuance, State Treasury and further financial and social provisions), introduced simplified procedures for employers to notify the Minister of Labour and Social Policy of the use of smart working for certain workers.

In particular, as of 1 September 2022, the employer is no longer required to telematically transmit the copy of the agreement regulating smart working to the Minister; now it is sufficient to telematically communicate the names of the employees concerned and the start and end dates of the smart working period.

ii Transparency of the contractual conditions: the new information obligations of the employer

The Italian government has introduced a series of obligations on the part of the employer, relating to the information that the latter is obliged to provide at the time of the conclusion of the employment contract and throughout the employment relationship, with the aim of establishing transparent and predictable working conditions (Legislative Decree No. 104 of 27 June 2022 (the Transparency Decree)).

This Regulation is applicable to all employees, except self-employed workers, agents and to employment relationships that have a very short duration (i.e., equal to or less than an average of three hours per week in four consecutive weeks).

This Decree has considerably broadened the range of information that the employer must provide in writing – hard copy or electronic format – to the employee at the time of recruitment, before the performance of the service begins and within seven days thereafter (except for the longer period of one month for certain types of data). In the case of existing relationships, however, the employer is required to update the data at the worker’s written request within 60 days of the request.

The information that must be communicated includes:

1. the type of contract;
2. the identity of the employer;
3. the place of work;
4. the start and end dates;
5. the probationary period (if any);
6. the employee’s classification;
7. working hours;
8. any training intended for the employee;
9. the duration of holidays and paid leave;
10. the procedure and notice periods in the event of termination by either party;
11. the conditions for changing the work shifts (if there are foreseeable hours); and
12. the social security and insurance institutions to which contributions are paid.

Any change in the information to be communicated must be made known to the employee by the first day on which the change takes effect, except in the case of legislative amendments or those resulting from the national collective labour contracts.

An employer who fails to comply with the information obligations under the Decree is punished with stiff penalties. In fact, the omission, delay or incomplete fulfilment of the information obligations entails the application of a pecuniary administrative sanction ranging from €250 to €1,500 for each worker concerned.

In addition to this sanction, there is the express prohibition for companies to dismiss, discriminate against and penalise employees who exercise the rights provided for in the Decree who, if they are victims of retaliatory behaviour, may have recourse not only to ordinary judicial protection but also to more rapid instruments (e.g., conciliation and arbitration) and file a complaint with the National Labour Inspectorate, with employers possibly being given a further fine.

Moreover, the Decree provides for a series of additional, very detailed and complex, information that employers must provide to employees for the following types of relationships:

1. those for which the employer uses automated decision-making and monitoring systems aimed at collecting data useful for recruitment, management and termination of the relationship, and those related to monitoring, evaluation and performance of the service;
2. those rendered abroad; and
3. those where the performance is not foreseeable.

In such cases, the employer is required to provide a further set of information that clarifies:

1. the purposes and aims of the systems;
2. their mode of operation and the relevant level of security (in the first case);
3. the country of destination;
4. the remuneration and the relevant currency;
5. the conditions for repatriation (where applicable);
6. the address of the institutional website of the host Member State where the information on the posting is published (in the second case);
7. the variability of the work schedule, with an indication of the guaranteed minimum paid hours;
8. the days and hours on which the employee is required to work;
9. the notice given to the employee before the start of the service (i.e., the period of time that must elapse between the moment the job offer is made to the worker and the actual commencement of the labour performance); and
10. the period within which the assignment may be cancelled (in the third case).

iii Further news on labour proceedings: the Cartabia Reform

Legislative Decree No. 149 of 10 October 2022 (Cartabia Reform, in force as of 28 February 2023) has introduced a series of provisions aimed at speeding up civil and criminal proceedings, with some minor innovations that also concern labour proceedings, both judicial and extrajudicial.

First, the Cartabia Reform has abolished the Fornero Rules and in their place has established that, as mentioned above, disputes in which the reinstatement of the employee following dismissal is provided for must take precedence over other disputes pending before the same judge.

Second, the Reform has introduced a new way of settling labour disputes out of court, called ‘assisted negotiation’. As of 1 March 2023, lawyers will be able to use this simplified extrajudicial proceeding to solve disputes by way of settlement.

In particular, the procedure is triggered by an invitation from one party’s lawyer to the other or directly by the signing of a convention, signed by the parties and the lawyers, to use the assisted negotiation.

This procedure will end with a conciliation minute, signed, also remotely, by the parties and authenticated directly by the lawyers (thus without the need to resort to the ‘protected venues’), which will be final and unobjectionable, pursuant to Article 2113 of the Italian Civil Code.

iv Stronger protection for employees who report wrongdoing in the corporate context: protective measures for whistleblowers

On 9 December 2022, the Council of Ministers approved the draft of the Legislative Decree implementing the Directive (EU) 2019/1937, which provides for increased measures to protect workers who report violations occurring within the work environment and obligations on public and private entities (with certain sizes), to facilitate the reporting of wrongdoing and the resulting protection of these individuals (i.e., whistleblowers).

In particular, the draft of the Decree provides that public and private entities that have employed, in the past year, an average of 50 or more workers fall within the scope of the acts of the European Union or have adopted an organisational and management model, pursuant to Legislative Decree No. 231/2001, are required to implement internal reporting channels.

These channels should allow employees who become aware of a relevant violation in the course of their employment relationship (also during the pre-hiring phase and after the termination of the employment relationship) to report it to persons with autonomy and specific training, who are obliged to receive the report (notifying the whistleblower within seven days by acknowledgement of receipt) and to follow it up (providing feedback on the report to the whistleblower within three months of the acknowledgement of receipt).

The report may be made in writing (including by informatic means) or orally (through telephone lines, voice messaging systems or, at the request of the whistleblower, by means of a face-to-face meeting set within a reasonable period of time).

The real novelty lies in the fact that the reporting channel must guarantee the confidentiality of the identity of the whistleblower and of the person involved or mentioned in the report and of the content of the report, to better protect the whistleblower and mitigate the risk that the latter may suffer retaliation because of the report.

If the whistleblower has suffered retaliation, the following protective measures are provided for the following:

1. nullity of acts taken in violation of the prohibition of retaliation;
2. reinstatement in the event of dismissal due to the report; and
3. invalidity of waivers and settlements of rights provided for by this new Decree if not carried out in a protected venue pursuant to Article 2113 of the Italian Civil Code.

In addition to internal reporting channels, additional ways to make reports are introduced in the event of the absence or malfunctioning of internal channels: external reporting channels (set up by ANAC) and public disclosures (i.e., actual dissemination of violations through the press or on television).

The Decree, whose draft was under discussion on 9 December 2022, was then approved with the introduction of Legislative Decree No. 24 of 10 March 2023, which entered into force on 15 July 2023.

v Relevant casesSupreme Court No. 25287/2022: PC v. B Banca Spa

This case concerns the issue of checks carried out by the employer on the employee through the intervention and support of an external investigation agency.

In this case, during investigations conducted on a colleague for breach of contract (leave) under Article 33 of the Law No. 104/1992, an employee was found to have repeatedly left the workplace (during working hours) to perform tasks unrelated to his job (e.g., shopping and training). Therefore, on the basis of these investigative findings, the bank ordered the employee’s disciplinary dismissal.

The Supreme Court specified that the activity of monitoring workers by means of external agencies or subjects, or both, is permitted only when it relates to the commission of unlawful acts and does not encroach upon the supervision of the actual work activity, which, pursuant to Article 3 of the Workers’ Statute, is reserved to the employer and their collaborators, also by means of audiovisual systems (within the limits set forth in Article 4 of the Workers’ Statute). Those conditions were not respected in the present case, since the investigation concerned conduct that the employee had engaged in during working hours, thereby determining the unlawfulness of the dismissal.

Supreme Court No. 34968/2022: TO v. Ministry of Justice

This judgment legitimises the employee’s legal action (pursuant to Article 2087 of the Italian Civil Code) against the employer in the event of damage to his health caused by overwork stress. The employee complained that he had suffered health damage (e.g., depressive syndrome and subsequent heart attack) due to unsustainable work rhythms caused by staff shortages and the absence of proper planning and distribution of workloads.

According to the Supreme Court, the employee, to obtain the relevant compensation, is required only to prove that the performance was carried out in a harmful manner and the causal link between the work performed and the injury. Conversely, the employer, by virtue of their duty to ensure that the activity is not detrimental to the employee’s physical integrity and personality, must prove that the performance was instead carried out according to the particularity of the work, experience and technique, in a normal, congruous and tolerable manner. Therefore, when workers complain that they have suffered an injury for having performed services beyond the tolerable limit, it is implied that there has been a breach of the general obligation of safety, which, pursuant to Article 2087 of the Civil Code, is incumbent on the employer, without it being necessary for the worker to indicate the breach of a specific prevention rule (as, on the contrary, stated by the Court of Appeal).

Supreme Court No. 7029/2023: MM v. TPER SpA

The decision in this case, which overturned the judgment of the Court of Appeal of Bologna, stated that it was justified (pursuant to Article 2019 of the Italian Civil Code) in its dismissal of an employee who, in an amateurish and derisory manner, had addressed a colleague using offensive and homophobic expressions, such as: ‘why are you also pregnant? Aren’t you a lesbian? How did you get pregnant?’.

According to the Supreme Court, the respect that any choice of sexual orientation deserves is an undeniable result of the evolution of society in recent decades: a choice that pertains to an individual’s intimate and private sphere, which must be protected against any undue intrusion with the appropriate means (including dismissal).

It is therefore not simply a question of morality, but out of respect for the principles laid down in the Italian Constitution (e.g., as the protection of the inviolable rights of an individual without distinction of sex, the protection of the development of a human being, and work as a form of expression of the individual personality), which are to be safeguarded in all their forms and applications.

Outlook and conclusions

The past year has been characterised by a slow return to the pre-pandemic period; that is, discussing and dealing with issues other than those related to the covid-19 pandemic.

On 31 March 2022, the state of emergency for the covid-19 pandemic officially ended, with the simultaneous adoption of Decree Law No. 24 of 24 March 2022 (converted into Law No. 52 of 19 May 2022).

The end of the state of emergency brought with it the gradual abandonment of the Green Pass and the elimination of the precautionary quarantines, thus seeking a gradual return to ‘normal’ life, both private and working, free of restrictions.

This has brought with it an increase in the creation of new jobs. A statistic conducted by the Minister of Labour and Social Policy showed that around 230,000 jobs were created in the first semester of 2022, almost 100,000 more than in the same period in 2019 (pre-pandemic period).

The government has thus refocused on the remaining unresolved issues in labour law, increasing protections for workers and trying to introduce new and faster ways of settling disputes.

It is difficult to know what further measures may be taken and what additional issues will be dealt with and explored by the government in the future. However, numerous reforms are on the table for discussion. Notably, very recently, the Labour Decree (Decree Law No. 48 of 4 May 2023) was approved.

The new legislation:

1. introduced the ‘Inclusion Allowance’, which, as of 1 January 2024, will replace the old income support measure (the Citizenship Income);
2. provided for new grounds for concluding fixed-term contracts exceeding 12 months but still not exceeding 24 months (leaving the definition of the grounds to be used to the applicable national collective labour contracts);
3. cut the tax wedge by 4 per cent, thus guaranteeing workers partial exemption from social security contributions; and
4. simplified the employer’s information obligations introduced by the Transparency Decree, establishing that information regarding working hours, scheduling and the probationary period can be communicated to the employee with an indication of the regulatory or the national collective labour contract, at national or company level.

The government is thus once again focusing on improving labour relations and trying to leave the nightmare of the covid-19 pandemic behind.