According to the Court of Cassation, a worker who gives directives to the staff is a subordinate employee and therefore cannot be considered a consultant

Court of Cassation, Employment Section, Ordinance no. 24391 of November 3, 2020

In handing down this decision, the judges offer a broad examination of the concept of subordination, in particular with reference to the employment relationship at managerial level. 
The judgment in question follows on the ruling of the Court in first instance that had characterized as a subordinate employment relationship a worker who was formally set up as doing “freelance consulting for strategic and operational marketing services”. The subsequent termination of the relationship was considered an actual dismissal and the company was ordered to regularize social security contributions as well as pay the indemnity in lieu of notice and additional damages. 

In upholding the decision of the lower court, the Judges of the Supreme Court remind us that «the fundamental requirement of the employment relationship – for the purposes of its distinction from one of self-employment – is the constraint of submission of the worker to the managerial, organizational and disciplinary power of the employer, which derives from the issuance of specific orders, as well as from the exercise of supervision and control of the execution of work and the exercise of disciplinary power». In addition, the existence of this constraint must be concretely appreciated with regard to the specificity of the assignment given to the worker and the manner of its implementation, it being understood that «any paid work can be done under both employment and self-employment relationships».
The Judges go on to say that «it is not appropriate to substitute the criterion of subordination, even where the name given to the relationship by the parties, while it is an element not generally disregarded, assumes decisive importance, where the self-labelling is in conflict with how the relationship is actually carried out in practice (Cass. 19/08/2013, No 19199. Cass. 27 February 2007, No 4500)».
With particular reference to labelling an employment relationship as self-employed or subordinate, where performance of the job involves a high level of intellectual content, according to the Judges «it is necessary to verify whether the worker can be considered subject, even slightly, to the directives, orders and controls of the employer, as well as to the coordination of the job,  according to the organizational structure of the company (cf. Cass. 01/08/2013, n. 18414; Cass. 15/05/2012 n. 7517; Cass. 14/02/2011, n. 3594), being able to resort, even secondarily, to elements indicative of subordination such as inclusion in the company organization, fixed working  hours, the pertinence to the production cycle, the intensity of the performance, salary not linked to results».
In particular, as regards the managerial population – where the worker enjoys ample autonomy, and the directive power of the employer is not manifested in continuous and wide-ranging orders and controls, but in issuing general instructions of an organizational nature – the judge «must assess, as a characteristic requirement of the performance, the existence of a situation of functional coordination of the same with the objectives of the company organization, suitable to lead back to the distinctive features of technical and legal subordination, even if in a context characterized by the so-called weakened subordination (Cass. 10/05/2016, n.9463; Cass. 15/05/2012 n. 7517)».

For the Supreme Court, the decision is consistent with this approach both because it gives predominance to how the relationship is performed in practice, regardless of the name given to the contractual relationship by the parties, because «the enhancement of the so-called secondary indicators, is the result of specific consideration of the characteristics of the activity deduced which, due to its high intellectual content, does not lend itself to be subject to pervasive powers of the employer».
In the case in point, the elements considered by the appeal judge to conclude that the worker was fully integrated in the company organization were his management of company employees, the hierarchical management structure, the worker having to report to a manager of the company, the use of company human resources, reimbursement of travel expenses.