Service contract: the principal’s joint and several liability with the service contractor is limited to remuneration only

Case Ref: Cassazione civile sez. lav., 06/11/2019 n. 28517

According to the Supreme Court, with a reasoning consistent with the literal interpretation of the rule and its rationale on the subject of joint and several liability of the principal with the service contractor, the term “remuneration treatment“, contained in Legislative Decree no. 276 of 2003, art. 29, paragraph 2, must be interpreted strictly, in the sense of the strictly remunerative nature of the emoluments that the employer is required to pay to its employees, as they are integral elements of remuneration, directly related to the work performance; on the other hand, the applicability of the aforementioned liability regime must be excluded for the amounts paid as compensation for damages (in the same sense Cassation no. 10354 of 19 May 2016; Cassation no. 27678 of 30 October 2018).
These, in fact, far from having a causal connection with the employment relationship, have a matrix rooted in a merely occasional connection with it (Court of Cassation 1 December 1998, no. 12168; Court of Cassation 17 July 2003, no. 11212; Court of Cassation 21 July 2008, no. 20087; Court of Cassation 8 August 2012, no. 14290; Court of Cassation 8 September 2014, no. 18852).
And so in the case examined in the judgment in question, these were claims arising from the illegal and unilateral reduction in working hours made by the employer. Therefore, according to the Supreme Court, these claims have a compensatory nature and as such the applicability of the joint and several liability regime must be excluded. The compensation relating to this unilateral variation is therefore of a compensatory nature, in respect of which the reference to remuneration serves as a mere calculation parameter, and excludes the joint and several liability of the principal.