1 Legal framework
1.1 Are there 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 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 Is there a contractual system that operates in parallel, or in addition to, the statutory sources?
In addition to the sources of law, individual and collective contracts play a vital role in the labour law context. National collective labour agreements (CCNLs) are particularly important; through these agreements, trade unions and employers' associations agree on both regulatory and economic aspects (eg, minimum wages) of employment relationships in certain industries. However, in light of the hierarchy of laws set out in question 1.1, the provisions of collective agreements may derogate from those with the force of law only if they are more favourable to the employee.
Unlike regulatory sources of law, CCNLs do not apply to all employment relationships; they have binding effect only if the employer:
- is a member of a trade union association that is a signatory to the same CCNL; or
- has voluntarily applied the CCNL, adhering to its provisions either:
- explicitly (eg, by indicating the details of the CCNL in the letter of employment); or
- implicitly (eg, by spontaneously and consistently applying the CCNL, or at least its most relevant clauses).
Employers, together with their trade associations, and workers' representatives, together with the relevant trade unions, can also sign collective agreements at the company or territorial level, in order to supplement the CCNL with more specific and business-friendly provisions.
1.3 Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?
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 holidays;
- 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.
On 29 July 2022, Legislative Decree 104/2022 was published in the Official Gazette.
The long-announced measure implements EU Directive 2018/1152 of on Transparent Working Conditions to be Disclosed by Employers to Employees. Legislative Decree 104/2022 revises and amends the provisions set out in Legislative Decree 152/ 1997. The new regime, after the vacatio legis period, took effect from 13 August 2022.
The decree applies to almost all types of employment relationships, with the exception of self-employment relationships and those characterised by a predetermined actual working time equal to or less than three hours per week, on average, over four consecutive weeks.
In these cases, the employer (or the principal in the case of coordinated and continuous collaborations) must notify the employee of the following:
- the identities of the parties, including the co-contractors/co-employers;
- the place of work. In the absence of a fixed or predominant place of work, the employer must communicate that the worker is employed in different places or is free to determine the place of work;
- the place of business or domicile of the employer;
- the classification, level and qualification assigned to the worker or, alternatively, the characteristics or summary description of the work;
- the date of commencement of the employment relationship;
- the type of employment relationship, including, in the case of a fixed-term relationship, the expected duration thereof;
- in the case of workers employed by an employment agency, the identity of the final employer, as soon as known;
- the length of the trial period, if any;
- the right to receive training provided by the employer, if any;
- the duration of holiday leave and other paid leave to which the worker is entitled or, if this cannot be indicated at the time of the information, the manner in which it is to be determined and taken;
- the procedure, form and terms of notice in the event of termination by either the employer or the employee;
- the initial amount of remuneration, or the remuneration and its constituent elements, with an indication of the time and manner of payment;
- the schedule of normal working hours and any conditions relating to overtime work and its remuneration, as well as any conditions for shift changes, if the employment contract provides for the organisation of working time in whole or in part;
- if it is typical of the employment relationship to be organised by largely or wholly unforeseeable arrangements with no planned regular working hours (with the exception of seafarers and fishermen):
- the variability of the work schedule, the minimum amount of guaranteed paid hours and the remuneration for work performed in addition to the guaranteed hours;
- the reference hours and days on which the worker is required to work; and
- the minimum notice period to which the worker is entitled before the commencement of work and, where permitted by the type of contract in use and agreed on, the period within which the employer may cancel the assignment;
- the collective agreement, including any company collective agreement, that applies to the employment relationship, with an indication of the parties that are signatories thereto;
- the bodies and institutions that receive social security and insurance contributions due from the employer and any form of social security protection provided by the employer; and
- the elements provided for in Article 1-bis of Legislative Decree 152/1997, if the manner in which the service is performed is organised through the use of automated decision making or monitoring systems.
The obligation to provide information is discharged by delivering to the employee, upon the establishment of the employment relationship and prior to the commencement of work, either:
- the individual employment contract drawn up in writing; or
- a copy of the notice of the establishment of the employment relationship sent to the competent employment centres.
The National Labour Inspectorate issued Circular 4/2022 to clarify a number of points regarding the fulfilment of the new information obligations. In particular, even where an employee has already learned of the main conditions set out in Article 1 (eg, daily working time; number of working days per week; monthly salary amount for number of months), if the individual employment contract or a copy of the communication of the establishment of the employment relationship is delivered to the employee, the corresponding regulations may be communicated simply by referring to the applicable collective agreement or to other company documents if these are simultaneously delivered to the employee or made available in accordance with company practice.
In support of the aforementioned circular, the Ministry of Labour issued Circular 19 on 20 September 2022 to clarify the new regulations.
In particular, the ministry clarified the following:
- In relation to leave of absence, pay is available only for those periods of absence which are expressly recognised as 'leave-of-absence', in Italian "congedi" (eg, maternity and paternity leave, parental leave and extraordinary leave for assistance to disabled persons, in accordance with the rules set out in Legislative Decree 151/2001; leave for care for disabled persons, according to Article 7 of Legislative Decree 119/2011; and leave for women victims of gender violence according to Article 24 of Legislative Decree 80/2015).
- The remuneration should include only what is actually foreseeable at the time of employment. Therefore, it is not necessary to include any variable elements (although, with regard to the production bonus, it will still be necessary to indicate the criteria for its recognition) or any corporate welfare measures, unless collective bargaining recognises these as part of the remuneration structure.
- With regard to working time, information should focus on:
- the employee's specific working hours;
- the conditions of shift changes;
- the modalities and limits of overtime work; and
- the relevant remuneration.
- In the case of subsequent changes to working hours, information is required only in the case of changes that affect working time structurally or over a significant period of time.
- According to the ministry, the definition of 'foreseeable work' generally also includes shift work and multi-period work. In such cases, it will suffice to indicate that the worker is included in the working time structure and to specify the manner in which the worker will be provided with information on the matter.
- With reference to the automated systems referred to in Article 1bis, an obligation to provide information exists in relation to:
- recruitment or assignment through the use of chatbots during interviews;
- automated profiling of candidates;
- screening of CVs;
- use of software for emotional recognition and aptitude tests; and
- management or termination of the employment relationship through automated assignment or withdrawal of tasks, duties or shifts, definition of working hours, productivity analysis, determination of remuneration, promotions and so on using statistical analysis, data analytics or machine learning tools, neural networks, deep-learning or similar.
- By contrast, information need not be provided in the case of, for instance, automated systems for recording clocking on and clocking off, which do not constitute a fully automated activity triggering an action which is typically an employer's. However, information must be provided where automated systems such as tablets, digital devices and wearables, GPS and geo-localisers, facial recognition systems, rating and ranking systems are used by the employer.
2 Employment rights and representations
2.1 What, if any, are the rights to parental leave, at either a national or local level?
The rules on parental leave are set out in Legislative Decree 151/2001.
A working mother is entitled to mandatory maternity leave under the law, which generally starts two months before the expected date of birth and lasts until the end of the third month after that date.
A working father is entitled first to a period of 10 days' leave, to be taken within the first five months of the child's life (mandatory paternity leave). A working father, in lieu of the working mother, is further entitled to paternity leave – that is, to abstain from work for the entire duration of the maternity leave or for the remaining part that would have been due to the mother – in case of:
- the mother's death or serious infirmity;
- abandonment of the child by the mother; or
- the grant of sole custody of the child to the father.
In such cases, paternity leave starts from the date on which one of the above events occurs.
In recognition of the importance of the presence of both parents in the early years of a child's life, the legislature has allowed each parent to benefit from optional parental leave – that is, a period of 10 months (which may be extended up to three years in the case of a child with a serious disability) of abstention from work, to be divided between the parents and to be taken during the first 12 years of the child's life.
2.2 How long does it last and what benefits are given during this time?
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 Are trade unions recognised and what rights do they have?
Article 39 of the Italian Constitution expressly recognises the freedom of trade union organisation. This principle has also been made effective in the workplace through a number of regulatory provisions introduced by the Workers' Statute, which:
- guarantee all workers the right to form and join trade union associations, and to carry out trade union activities in the workplace; and
- among other things, expressly prohibit discriminatory acts and the granting of more favourable economic treatment on the basis of a worker's membership of a trade union association or the carrying out of trade union activities.
In addition, trade unions are granted the following rights:
- to be informed and consulted in advance on specific events and operations relating to the employer's employment planning;
- to convene workers' meetings, including during working hours (albeit within the limit of 10 hours per year);
- to hold referendums on matters relating to trade union activities; and
- to post, in appropriate spaces that are accessible to workers, texts and communiqués on matters of trade union and labour interest.
Specific rights and protections are granted to trade union leaders; among other things, they are entitled to take paid leave to perform their duties, as well as unpaid leave to participate in trade union negotiations, conferences or congresses.
As a further guarantee of trade union freedom and activity, the legislature has introduced a specific form of judicial protection to prevent any anti-union conduct by the employer.
2.4 How are data protection rules applied in the workforce and how does this affect employees' privacy rights?
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 Are contingent worker arrangements specifically regulated?
Occasional work services are regulated by Decree-Law 50/2017, as amended by Decree-Law 87/2018.
Occasional work services are subject to strict monetary limits, with reference to the calendar year in which the service is rendered. In particular, in the period between 1 January and 31 December each year, occasional work may be performed provided that:
- each worker, with reference to all principals, receives remuneration in a total amount not exceeding €5,000;
- each principal, with reference to all workers, pays remuneration in a total amount not exceeding €5,000; and
- for all services rendered to the same principal, the service provider receives remuneration not exceeding €2,500.
In any case, no principals – that is, companies which employ up to five permanent employees, agricultural companies, public administrations, hotel companies and tourism facilities – may receive occasional work services from current employees or continued collaboration providers, or from former employees or continued collaboration providers that were terminated less than six months previously.
The remuneration can be freely agreed between the parties, except for a minimum hourly remuneration of €9 and a daily remuneration of not less than €36, equal to the remuneration of four working hours.
In certain cases, breach of these regulations may lead to the mandatory conversion of the employment relationship into a full-time, permanent employment contract.
3 Employment benefits
3.1 Is there a national minimum wage that must be adhered to?
Remuneration is the main economic right of an employee. Italian law does not expressly provide for a minimum wage. The Parliament has put the potential introduction of a statutory national minimum wage on its agenda; as yet, however, no decision in this regard has been issued.
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 Is there an entitlement to payment for overtime?
Employees are entitled to increased remuneration for overtime work.
According to Legislative Decree 66/2003, 'overtime' is work performed beyond the normal working hours fixed by law.
An employer is entitled to request work in excess of the ordinary limits, provided that this complies with quantitative and procedural limits.
Under current legislation, overtime work, in addition to normal work, must fall within the 'weekly maximum' limit set by collective agreements, not exceeding 48 hours per week on average. In the absence of a provision in the collective agreement, recourse to overtime is conditional on the worker's consent and on an annual limit of 250 hours.
Outside this scenario, overtime can be requested only for typical and imperative needs, such as:
- exceptional technical-productive needs that cannot be met by hiring new workers;
- cases of force majeure or where failure to carry out work immediately could result in a risk of harm to the person or the worker; or
- special events, such as exhibitions or fairs.
Overtime is compensated separately and by supplementary pay, whose determination is left to collective agreements; these may grant the employee the right to compensatory rest in addition or as an alternative to supplementary pay.
3.3 Is there an entitlement to annual leave? If so, what is the minimum that employees are entitled to receive?
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:
|New Year's Eve||1 January|
|Liberation Day||25 April|
|Workers' Day||1 May|
|National Day||2 June|
|Feast of the Assumption||15 August|
|All Saints Day||1 November|
|Feast of the Immaculate Conception||8 December|
|Christmas Day||25 December|
|St Stephen's Day||26 December|
3.4 Is there a requirement to provide sick leave? If so, what is the minimum that employees are entitled to receive?
In the event of an accident or illness, a worker has the right to keep his or her job until recovery as certified by the National Institute for Insurance against Accidents at Work, in addition to receiving a payment that is generally equal to his or her full salary.
Pursuant to Article 2110 of the Civil Code, the retention period is limited to that established by special laws, custom or equity.
Collective agreements determine to varying degrees the length of the period during which a worker on sick leave cannot be dismissed, which will sometimes depend on the worker's classification or length of service.
The time allowed for the suspension of an employment relationship due to sick leave is called 'comporto'. A distinction is made between periods of continuous illness and those in which worker returns to work between several successive illnesses.
Once the whole period of comporto has been used for sick leave, the employer may terminate the employment contract within a reasonable period of time.
Article 2110 of the Civil Code grants a worker on sick leave the right to remuneration or an indemnity to the extent and for the time determined by special laws, custom or equity.
In practice, collective agreements determine the economic rights of sick workers by establishing an indemnity commensurate with the percentage of pay normally received. In the case of an employee, the compensation is paid by the employer, in full for a certain period and in part for a later period; in the case of a worker, the compensation is paid by the Istituto Nazionale della Previdenza Sociale (INPS).
3.5 Is there a statutory retirement age? If so, what is it?
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?
Article 2 of the Constitution guarantees citizens' inviolable rights; and Article 3 of the Constitution requires equal treatment regardless of sex, race, language, political opinion or personal or social conditions.
Article 37 of the Constitution enshrines an important principle: female workers should receive the same rights and the same pay as male workers for equal work (or duties, but not performance).
The Code of Equal Opportunities between Men and Women was issued through Legislative Decree 198/2006.
Equality between workers must be ensured with regard to:
- access to employment (in whatever form), including selection, recruitment, promotion and training criteria;
- remuneration – any form of direct or indirect discrimination concerning any aspect or condition of remuneration is prohibited with regard to the same job or work to which equal value is attributed;
- career advancement;
- social security benefits; and
Discrimination can be:
- direct, where a provision, criterion, practice, act or behaviour has a discriminatory effect (eg, giving preference to a man over a woman in equivalent circumstances); or
- indirect, where a seemingly neutral practice, act, pact or behaviour puts one worker at a disadvantage compared to another (in a company with pay differences between part-time workers and full-time workers, the former are mainly women).
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?
There are specific forms of protection, as follows:
- Gender: Positive action being taken to address discrimination between male and female workers includes measures such as:
- incentives for female entrepreneurship;
- promotion of flexible working hours:
- reversible part-time, flexible hours;
- training courses for women to encourage their participation in traditionally male sectors; and
- crèches for female workers.
- The implementation of such positive action is entrusted to the National Committee for Equality at the Ministry of Labour (in addition to local councils), with the aim of preventing discriminatory behaviour on the grounds of sex and removing other obstacles that limit equality between men and women in the workplace. These bodies promote equal opportunities and are involved in various procedures to identify potential discrimination against women workers. Women-only quotas are compulsory in public administrations and control bodies of listed companies.
- Disability: An employer must take effective measures and organise the workplace according to a person's disability – including rearranging the work premises and adapting equipment, work rhythms and/or the division of tasks – unless these measures would create disproportionate financial burdens. Public institutions may subsidise workplace adaptation. Employers are obliged to employ a certain percentage of disabled workers in relation to the total number of employees in the company.
- Religion: Employees can ask companies to allow them to fulfil their religious mandates, such as observing a day of rest other than Sunday or 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?
Upon finding that a certain behaviour was discriminatory, the judge may adopt measures to prevent such behaviour in the future or to remedy behaviour that has already taken place.
In the former case, an action for injunctive relief is exercised by means of either an urgent appeal or an ordinary court action. Subsequently, compliance with the judicial order will be ensured through the application of coercive measures regulated by law.
In the latter case, restorative, restitutive or compensatory measures are taken. More specifically, the judge may adopt any appropriate measures to remedy the effects of the discrimination. In this case, the judge may order the offender to pay damages and may order the defendant to adopt a plan to remedy the discrimination.
The Equal Opportunities Code provides that in case of violation, a fine or a penalty must be paid for each day of delay in the adoption of the measures ordered by the judge.
Any discriminatory behaviour in the Italian legal system is considered a null and void legal act under Article 15 of the Workers' Statute and Article 4 of Law 108/1990 as regards dismissal. Thus, a discriminatory dismissal is sanctioned by nullity and the employee is entitled to compensation equal to the salary accrued from the date of dismissal until the date of actual reinstatement in his or her job, and in any case not less than 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 Must a valid reason be given to lawfully terminate an employment contract?
There are two types of termination:
- ad nutum, where the employment relationship can be terminated without a specific reason (eg, probationary workers, domestic workers); and
- justified – that is, necessarily supported by a reason (just cause, objective or subjective justification).
With regard to resignation (withdrawal by the employee) from open-ended contracts, the general rule is that the party is free to withdraw, subject to the obligation to give notice, unless there is a breach by the employer that constitutes just cause for withdrawal. In fixed-term contracts, termination before the end of the term is allowed only for just cause.
Dismissal (employer-side termination) must necessarily be grounded on:
- just cause – that is, a fact that does not allow the employment relationship to continue, even temporarily, in which case no notice period applies (eg, a criminal offence);
- subjective justified reason – that is, a significant failure, but of lesser gravity than the preceding one, to fulfil contractual obligations attributable to the employee's fault, in which case notice must be given (eg, negligent failure to guard property); or
- objective justification – that is, reasons relating to the employer's production activities, the organisation of work or its proper functioning (eg, loss of job).
Collective dismissal occurs where an employer – whether an entrepreneur or not (employing more than 15 employees) – intends to dismiss, within a period of 120 days, a certain number of workers (at least five in the same production unit or in several units operating in the same province) due to the reduction, transformation or cessation of activities.
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 null and void (eg, discriminatory, in breach of the law or served orally), the employer must reinstate the employee and pay damages of at least five months' salary.
Protection in the event of unlawful dismissal differs not only according to the size of the company (employing up to 15 employees or more), but also according to whether the employee was hired before or after 7 March 2015.
If the employee was hired before 7 March 2015, the remedies are as follows:
- reinstatement and payment of an indemnity equal to the last full salary, up to a maximum of 12 months' salary, on the grounds that the alleged fact which gave reason for dismissal either did not exist or could not be punished by dismissal;
- compensation of between 12 and 24 months' salary if the alleged fact existed but was not punishable by dismissal; or
- compensation of between six and 12 months' salary if the dismissal is declared ineffective for lack of justification and formal requirements provided by the law.
If any employee other than a 'Dirigente' (ie, an executive, top manager or expert qualified at a high level employed by a company under the applicable national collective labour agreement, which is different from the employee national collective labour agreement applicable in the relevant sector) was hired before 7 March 2015, the remedies are as follows:
- reinstatement and payment of an indemnity equal to the last full salary, up to a maximum of 12 months' salary, in case of non-existence of the contested fact;
- damages of between six and 36 months' salary if the dismissal is deemed unlawful on other grounds; or
- payment of compensation between two and 12 months' salary in the event of formal or procedural defects.
These remedies do not apply to dirigenti; their union representation, as with their collective bargaining, is separate from that for employees ranked at a lower level.
5.4 What rights, if any, are there to statutory severance pay?
Upon termination of employment, regardless of the reason, 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?
The court of first instance, acting as labour judge, is competent to deal with labour disputes. In particular, it deals with disputes involving:
- private employment agreements;
- agency agreements;
- other collaboration agreements resulting in the provision of continuous and coordinated work, mainly of a personal nature, even if not of a subordinate nature; and
- the labour relations of employees of public bodies (not referred to another court).
Labour proceedings have special characteristics and are inspired by the following principles:
- concentration; and
- strong investigative powers.
The proceedings begin with the filing of a complaint. The defendant then files a defensive brief in response. At the first hearing, the judge interrogates the parties, attempts to reach a settlement and assesses the admission of evidence. Usually, another hearing is scheduled for this. Once the preliminary investigation phase (if any), has ended, the judge will summon the parties for discussion and will then decide on the case.
One of the main features of labour proceedings is the wide-ranging powers of investigation vested in the judge, who may:
- admit any means of proof;
- request written and oral information;
- arrange access to the workplace; and
- make even those who are incapable testify.
At the end of the hearing, the judge will pronounce judgment by reading out the order at the hearing, as well as the reasons in fact and in law for the decision. The first-instance judgment can be appealed before the competent court of appeal within six months of publication (or within 30 days of notification); while the second-instance judgment can be appealed before the Court of Cassation within six months of publication (or within 60 days of notification).
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.
7 Trends and predictions
7.1 How would you describe the current employment landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The gig economy has presented new questions relating to labour law, which have only recently been answered.
The 'classic' Italian labour law dates back to the 1960s and 1970s. It is naturally and historically founded on the definitions of autonomy and subordination: the scheme was the factory; the market was Fordist. Today, things have changed and the boundary between the two categories has become increasingly blurred (and in some cases has disappeared altogether). 'Hetero-direction'(ie, an employer's control of the methods of execution and the location and times of the work performed by its employees) – which is the main focus of Italian labour law – is no longer to be found on the assembly line, but now takes the form of increasingly weak powers of control in the face of increasingly 'agile' jobs. The rules must thus be adapted to reflect these new socio-economic phenomena.
In fact, 'hetero-direction' implies supervision, directives and control by top management, as established by the Court of Cassation in its Judgment 3640 of 13 February 2020. With reference to a professional who is entrusted with managerial tasks, the court stated that anyone subject to "even a mild or lesser form of supervision and control by the employer, as well as to coordination of the work, according to the company's organizational structure" is to be deemed employed under a subordinate work agreement, since "hetero-direction, even if interpreted reasonably with regard to intellectual work, is a decisive criterion for distinguishing the subordinate nature of the employment from a service provided by the professional as freelance" (with reference to Article 2094 of the Italian Civil Code).
Understandably, the COVID-19 pandemic has also had a major impact on labour principles and on the delicate balance between employers' requirements and workers' rights. In this regard, technological innovations in the workplace have evolved from opportunity to necessity.
This is the direction that the latest legislative actions seem to have taken. No structural reforms are currently underway (except perhaps in the field of social security); but it is both probable and desirable that action will soon be taken to regulate today's digitised, agile and essentially more modern working practices.
8 Tips and traps
8.1 What are your top tips for navigating the employment regime and what potential sticking points would you highlight?
Italian labour law is particularly complex because it is based on different regulatory levels (laws, collective agreements and individual agreements) whose relationships are complicated and often unclear.
The primary tip is therefore to pay attention to the source of the rights under discussion and not to limit oneself to what has been laid down by the national legislature alone, because this may not – or not entirely – apply to the case under analysis.
It is also necessary to take care when entering into contracts other than open-ended, full-time contracts: each 'non-ordinary' contract has its own peculiarities and, above all, its own system of sanctions in case of violation of the requirements set out by law.
When it comes to open-ended contracts, their termination is burdensome on the employer, which should consider the risks relating to this possibility. In fact, the termination may unexpectedly be found unlawful; and the heavy penalties ordered by the court may still include the employee's reinstatement and the payment to him or her of all wages accruing in the meantime.
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.