Employment newsletter – January 2021

LEGISLATION
Law no.2 of 14 January 2021
Additional emergency measures for the containment and prevention of Covid and the conduct of elections for 2021.
These measures extend the national state of emergency until 30 April 2021 and establish the so-called “white” zone in regions with an incidence of infection, for three consecutive weeks, of less than 50 cases per 100,000 inhabitants. In these areas the restrictive measures contained in the below Prime Ministerial Decree will not be applied, and specific protocols will be put in place with a view to a general reopening of all commercial activities.

Decree of the President of the Council of Ministers (DPCM) January 14, 2021
Prime Ministerial Decree containing further measures to contain the Covid-19 pandemic differentiated on the basis of three levels of risk: yellow, orange and red (tiers). These provisions are effective from 16 January to 5 March 2021.

CASE LAW
Dismissal related to a drop in turnover and recession in the industry; duty of repêchage
(ref: Supreme Court Employment Section, case no. 1508 of 25 January 2021)
In the case of dismissal for objective (economic) reasons (art. 3 Law 604/1966), the employer’s duty to demonstrate that it cannot assign the employee to other tasks (the so-called duty of repêchage) is incompatible with the reasons strictly related to the reduction of personnel costs (as is the case here) because, keeping the employee on, albeit in another position, would hinder the need to reduce costs.
Therefore, it logically follows that this duty cannot be considered breached when the potential relocation of the employee is incompatible with the actual organizational structure of the business. In the case in question, the dismissal of the employee was upheld in that sector is in recession and the substantial loss of turnover justifies the dismissal.

The requisites for a genuine service contract (tender)
(ref: Supreme Court Employment Section case no. 1403 of 22 January 2021)
It is not considered as a deviation from the typical framework of a genuine tender contract that the operating procedures of the service are detailed in the contract.
The two typical requisites of a genuine service contract are the exercise of the contractor’s managerial and organizational power and the assumption of the business risk.
Predetermining the method of performance, described in detail in the terms of contract, meets the need for conformity of the work performance to the technical specifications of the particular service, without, however, affecting the autonomy of the contractor as regards regulating work shifts, holidays and anything else relating to the management of its employees.

Unfair dismissal of a shop assistant who refused to serve a customer not wearing a mask
(ref: Court of Arezzo Employment Section, 13 January 2021)
A disciplinary dismissal, on the grounds that the employee refused to serve a customer because he was not wearing a mask, was found to be illegitimate. The worker was simply exercising his constitutional right to work in a safe environment. Moreover, the necessity dictated by the COVID-19 pandemic, would have allowed the employee, even in the absence of a specific law, to abstain from working, because doing his job would have exposed him to a risk of personal injury. Hence the illegitimacy of the dismissal and reinstatement of the employee.

Unsuitability for the job and the current ban on dismissals
(ref: Court of Ravenna, Employment section, 7 January 2021)
Dismissal for supervening unsuitability for the job is included in the scope of the current ban on dismissals (due to Covid) for justified objective reason (under art. 46 of Law No. 18 of March 17, 2020). This reason for dismissal is, in fact, undoubtedly objective (it is not disciplinary) in the dichotomy of art. 3 of Law no. 604/1966. The same economic and social protections apply to this type of dismissal as those underlying the ban of the so-called “economic” dismissals provided for by the emergency Covid legislation.

CUSTOM AND PRACTICE
INPS (Italian Social Security Body) – Circular no. 7 of 21 January 2021
The Circular contains the maximum amounts of furlough: salary integration regime, ordinary allowance and emergency allowance for the Solidarity Fund of Credit, emergency allowance for the Solidarity Fund of Cooperative Credit, unemployment benefits NASPI, unemployment benefits DIS-COLL, agricultural unemployment benefits and allowance for “socially useful” activities for the year 2021.

INPS – Announcement no. 227 of 20 January 2021
The suspension provided by the Finance Act of 2021 is extended. Workers can be “bridged” to retirement (old-age or early retirement) with the Fornero provisions being put on hold for all exits concluded by 30 November 2023

Ministry of Health – Note of 14 January 2021 (Protocol no.0001330)
The obligation to submit online to INAIL (National Insurance Body for Accidents at Work) the annual communication on health data (art. 40(1) of Legislative Decree 81/2008) is suspended for 2021.

INPS – Circular no.2 of 12 January 2021
The Circular describes the operating procedures for the use of extraordinary leave of absence, provided by the so-called “Ristori” Law, in favour of parents employed in the so-called “red zones” (top tier for Covid contagion), following the temporary closure of schools

Ministry of Labor and Social Policy, Circular no. 19 of 21 December 2020 
Art. 3(5) of Law 68/1999. Suspension of occupational obligations for employers benefiting from furlough for COVID.
The suspension of this obligation is governed by the above Law and by article 4 of Presidential Decree no. 333/2000 and also applies to employers who have recourse to the various types of furlough provided under articles 18 to 22 of Decree Law no. 18/2020.
This obligation remains firmly suspended for the entire duration of furlough for COVID in proportion to the work actually suspended and the reduction in number of hours. The onus is on the employer to present the request to restart territorial services for targeted employment and is deemed to have been reinstated when the recession triggered by the pandemic for Covid has passed.