Court of Cassation Order 14 June 2021 no. 16719

In the case under discussion, where a TUPE transfer is declared illegitimate, the transferor must pay the employee’s full salary, without deducting the salary the employee received from the transferee, since these are two relationships that remain strictly separate and distinct.
The Court of Cassation first of all notes that “since it has been ascertained, with a final ruling that the conditions for applying article 2112 of the Civil Code do not exist and that the employee has not expressed his consent to the transfer of the contract, in accordance with the provisions of article 1406 of the Civil Code”. As a result “the employment relationship established, in fact, between the transferee company and the worker remained entirely distinct from the one the latter had with the transferor”.
The Supreme Court goes on to say that “if the employer has transferred part of a business that is then declared illegal and has refused to restore the relationship without justification, the amounts due to the employee  from the transferee by way of salary for the period, are not deductible from the amounts due by the transferor. 
And this is because, continues the Supreme Court, “in this case, the same right remains to receive the sums due by the transferor employer, by way of remuneration and not damages (see, again, Cass. SS.UU. No 2990/2018, cited)”. And therefore “the principle of compensatio lucri cum damno, on which the deductibility of the aliunde perceptum from the damages is based, does not apply, since, precisely for that reason the request for payment by the worker under the heading of damages was expressly excluded”.
On these grounds, the Supreme Court rejected the appeal brought by the transferor, thus upholding the order to pay the sums due.