In ruling no. 315 of 12 April 2022, the Court of Appeal of Bologna stated that in the subordinate employment relationship, the time required to wear the company uniform is part of working time only if it is subject to the employer’s control. This may derive either from the “explicit” company regulations or, implicitly, from the nature of the garments or their function, such as to determine an obligation to wear the uniform in the workplace. This offers the opportunity to look at recent Court of Cassation case law, particularly the hetero-direction indexes
Before examining the ruling of the Court of Appeal of Bologna 12 April 2022, no. 315 and its placement in the reference case law, it is helpful to look at the reference legislation.
Under Art. 66/2003 in art. 1, paragraph 2, letter a, the term working hours means “any period during which the employee is at the employer’s disposal and performing their work or duties.” Working hours include not just the employee’s performance but operations that are part of it and must be performed by the employee in the manner established by the employer.
It is established in case law that hetero-direction may be inferred from other indexes, such as explicit company regulations or the clothing’s nature and function when it is different from that used or usable in everyday life (Court of Cassation, Labour Section, Order, 20/06/2019, no. 16604; Court of Cassation labour section Ruling 26/01/2016, no. 1352).
Under explicit company regulations, hetero-direction may arise from the company’s obligation to wear the uniform in the workplace and to leave it on company premises.
In some cases, hetero-direction may be inferred from the garments’ nature and function. For example, the uniforms of nurses working inside health care facilities are under employee and public hygiene and safety requirements and must be worn and disposed of at the workplace before the shift’s start and end without being taken outside. This is imposed by unavoidable employer requirements (and public health protection), and must be paid work time since the employee does not have the option of wearing the uniform at home (Court of Cassation Order of 1 July 2019, no. 17635).
Similarly, the canteen caretaker must wear the uniform in company changing rooms that are spatially contiguous to the canteen for health reasons, although the contractual regulations do not calculate the changing as being part of working hours
The garment’s nature may constitute a subsidiary index for establishing hetero-direction. The key criterion is the employee’s submission to a contractual provision (National collective Labour Agreement or supplementary company contract) or company provision (such as, company regulations or a service order) for uniform time and place.
Facts of the case and first instance ruling
Several employees of a company operating in the chemical sector brought an action before the local Court to obtain an order to pay them remuneration for the time (20 minutes a day), spent changing and showering .
The Court upheld the appeal based on the following arguments: “hetero-direction may derive from explicit company regulations, but may be implicit due to the clothing nature when it is different from that used or usable according to ordinary social criteria.” The Court cited an Order of the Court of Cassation that referred to the case of nurses (Court of Cassation, Labour Section, Order of 07/05/2020, no. 8627).
Based on this assumption, the Court held that “the hetero-direction for changing can derive from specific or implicit instructions inferred from the situations in which work takes place and its features. This is regardless of whether the clothing can be considered PPE or clothing used for hygiene reasons.”
According to the Court, “The evidence univocally lead to the conclusion that in the operating departments the worker gets dirty and the type of work makes this inevitable. Arriving from home and returning with the worker’s clothes after the end of the shift appears to be an abstraction, regardless of the PPE, which, due to its features, exclude its use outside work.”
According to the Court, “this is a de facto situation where changing at work is an obligation due to the type of work. This means that even without unequivocal and explicit hetero-directed instructions, it is implicitly necessary to carry out this commitment in the work environment” as if the hetero-direction were in re ipsa due to the type of work.
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