Employment newsletter – February 2021

LEGISLATION
Decree-Law no. 15 of 23 February 2021
Further emergency measures on the restriction of movement of persons across the regions of Italy in order to contain the Covid pandemic


CASE LAW
Constitutional Court: compulsory reinstatement in case of manifest lack of the facts underlying the dismissal for objective justified reason
Press release from Constitutional Court of 24 February 2021
The Constitutional Court has held to be founded the question of legitimacy raised by the Court of Ravenna regarding Article 18 of the Workers’ Statute, as amended by the so-called Fornero Law, insofar as it provides the ability, and not the obligation, of the judge to reinstate the worker in the event of non-existence of the facts underlying the dismissal for objective reasons.

Attempting to apply the duty of repêchage cannot impose organizational changes on the business, even for workers with disabilities
Supreme Court, Employment Section, 23 February 2021, no. 4896 
The employer has met the burden of proof under art. 5 of Law No. 604 of 1966 of justified reason for dismissal, by demonstrating that with regard to the tasks assigned to the remaining staff, there were no equivalent or lower tasks available to assign to the disabled worker. It is thus irrelevant to look further at any potential measures by the company in order to adapt duties that were in any case completely incompatible with the disability.

Riders: heterorganised collaboration and proceedings for the repression of anti-union conduct
Court of Florence Judgement of 9 February 2021 
According to consistent case law, the legitimacy of activating the procedure for the repression of anti-union conduct under Article. 28 of Law 300/1970, which is typical to the employment relationship, cannot be extended to trade unions representing freelancers or para-subordinate workers, who do not have such a bond of subordination and therefore have to resort to the ordinary procedural remedies.
The so-called riders cannot be considered subordinate workers, since the company cannot impose on them a way to work and can only use their services if the rider decides to make himself available to carry out the delivery.
The Court of Florence rejected the claim of the CGIL union against Deliveroo Italy and recognized the autonomous nature of the collaboration between the riders and Deliveroo, i.e. the non-applicability of art. 28 of Law 300/1970.

Working while on furlough
Court of Cassation Employment Section 9 February 2021, no. 3116
A worker on furlough may work as a self-employed person or as a subordinate, but he/she must communicate this in advance to INPS, under penalty of forfeiting the furlough payments.
Furlough constitutes, in fact, a form of social insurance aimed at guaranteeing income support for workers, due to a particular situation in the company: this need would clearly be lacking in the event of carrying out other paid work.
On these grounds, the Supreme Court upheld the company’s appeal, as the worker had omitted to make the necessary communication.

[SPAIN] Ban on redundancies: in contrast with European law 
Barcelona Court, Judgment no. 283 of 15 December 2020 
In this decision, the Court of Barcelona has declared that the continued ban on economic redundancies, by limiting unconditionally the employer’s power to reorganize the company, ends up being contrary not only to article 38 of the Spanish Constitution but also to European Constitutional law, namely article 3(3) of the Treaty on European Union and article 16 of the EU Charter of Fundamental Rights.
On the basis of these arguments, the Spanish judge disapplied the emergency national law as contrary to European law, declaring the legitimacy of the dismissal served by the Spanish company for economic reasons due to the fall in turnover and sales, as well as the non-performance of numerous contracts by suppliers and customers due to force majeure.


CUSTOM AND PRACTICE
INPS(Italian Social Security Body) – Circular no. 32 of 22 February 2021
FEMALE EMPLOYMENT: INPS provides the first operational guidelines on the social security exemption for hiring female workers in the two-year period 2021-2022.

INPS – Announcement no. 689 of 17 February 2021
NASPI (unemployment benefit): INPS clarifies that a company collective bargaining agreement entered into for the purpose of providing incentivized termination of employment with access to the NASPI (a Covid emergency legislation provision) is valid even if signed by just one trade union.

INPS – Circular no. 28 of 17 February 2021
Summary of the main social security and income support measures planned for 2021. New provisions on extended furlough for Covid. Accounting instructions.

INPS – Circular no. 16 of 5 February 2021
SPORT: INPS provides the provisions concerning the suspension of deadlines for payment of social security contributions for national sports federations, promotional bodies and professional and amateur associations.