Replacements and shift work: the professional is not self-employed

The Court of Cassation, under order 23520 dated 20 September 2019, confirmed that the professional, when performing the service in a manner and time frame established by the management of the company, performing the same tasks as colleagues employed under an open-ended employment contract, is not a self-employed worker, but an employee.

Facts of the case

A doctor carried out his professional activity in a hospital under a series of self-employed partnership agreements. Despite this, he worked in single shifts during the day/night, arranged by the head physician, in which both doctors with an employment contract and those with a self-employed professional contract were included. The doctor, like his employed colleagues, was also required to make last-minute replacements, including in departments other than those of his specialisation. In addition, his activities were the same as those of structured doctors. The differences with the employees did not concern the nature and manner of the work, but were merely formal: the doctor was not obliged to be on call nor did he have a badge, but still had to sign an attendance sheet.

The decision of the Court of Cassation

The Court of Cassation confirmed that, where the element of subjection to the directives of others is not easily appreciable due to the intellectual nature of the tasks performed – as in the case of the medical profession – for the purposes of distinguishing between self-employment and employment, reference must be made to subsidiary indices derived from the actual manner in which the contract is carried out, such as the hetero-organisation – not limited to coordination – and the submission to directives on the performance of the activity.

In this case, the doctor’s services were entirely predetermined by the medical managers in charge of him, who organised his shifts and replacements. Consequently, in light of the factual data emerging from the actual course of the contractual relationship, the professional role was legally traceable within the parameters specific to Article. 2094 of the Italian Civil Code, which classifies the employment contract as subordinate if the worker is subject to the hierarchical and organisational power of the employer.