Court of Cassation: trial period and its validity

With sentence no. 16214 dated 3 August 2016, the Court of Cassation affirmed that a trial period must be accepted in writing by the employee. In this particular case, a female employee asked the Courts to quash the termination of her employment because the trial period specified in the employment contract had expired. The employer claimed that the employee, replying to an email from the company warning her of the need to extend the trial period, had offered to draft a letter herself to this effect, a letter she sent by email to the company unsigned. The letter was signed in two original copies by the legal representative of the company and handed over to her for her signature and her records. The trial period continued with a negative outcome for future employment, and the company notified the employee of the termination of employment, only to discover that she had not signed the extension letter. Confirming the previous rulings, the Court of Cassation pointed out that trial periods in writing pursuant to section 2096 of the Italian Civil Code are required «ad substantiam» and must be established from the outset of the working relationship without equivalents or modification. In the opinion of the Court, in this case, the written form was defective because the employee had restricted herself to drafting an extension letter, sending it to the company by email, without signing it. Furthermore, according to the Court, «the trial period is an incidental part of the contract, which does not exist and can have no effect if it is not expressly included by the parties in the individual contract». In other words, in the opinion of the Court, an agreement to extend the trial period, signed after the commencement of work and not part of the employment contract has no effect in relation to the duration of the trial period. Finally, the Court reaffirmed the principle according to which a trial period must be declared null and void where «employment duties are not specified, and hence conversion of the working relationship into definitive employment from the outset”. Because «dismissal due to failure to satisfy during the trial period, where no trial valid period has been specified, is unjustified due to lack of proper cause».