In the operative part of judgment 194/2018 issued on 8 November 2018, the Constitutional Court has ruled that art. 3, paragraph 1, of Legislative Decree 23/2015 (governing open-ended employment contracts with increasing protections) is constitutionally unlawful when it links the amount of severance indemnity (for that part not modified by the Dignity Decree) payable to an employee who is dismissed without cause only to that employee’s length of service. According to the Constitutional Court, this method of quantification “implies” that severance indemnity is rigid, having the characteristics of a “standardised, flat rate legal severance payment”. In particular, for the Constitutional Court, the provision in question is contrary to the principles of equality and reasonableness and in conflict with employment laws and protections. The Constitutional Court takes the view that the court must be able to determine the indemnity payable to an employee – within the limits of its own discretionary powers and in accordance with the minimum limit of 6 monthly salaries (previously 4) and the maximum limit of 36 monthly salaries (previously 24) – taking into account not only the employee’s length of service but also on the basis of other criteria which can be “systematically inferred from developments in the restrictive provisions governing dismissals (number of people employed, size of the company’s economic activity, behaviour and situation of the parties)”.
