Headnote
In its recent judgment No. 24981 of 3 September 2026, the Italian Supreme Court held that, where a dismissal is set aside with an order of reinstatement pursuant to Article 18, fourth paragraph, of the Workers’ Statute, entitlement to NASpI does not cease merely upon the de iure restoration of the employment relationship, but only where there has been an actual de facto restoration thereof, including from an economic standpoint. It follows that NASpI is not recoverable in respect of the period between the dismissal and the exercise of the election, where reinstatement has not been concretely implemented. Conversely, from the moment the employee exercises the election for the indemnity in lieu of reinstatement under Article 18, third paragraph, of the Workers’ Statute, the ensuing unemployment can no longer be characterised as involuntary, since it derives from a juridical act of the employee; accordingly, there is no entitlement to NASpI for the subsequent period.
Proceedings on the Merits
The case arose from the dismissal of two employees in the context of a collective redundancy procedure, which was subsequently annulled by the Court of Milan, with an order of reinstatement and an award against the employer for the compensatory indemnity provided for by Article 18, fourth paragraph, of Law No. 300/1970. The employees, however, did not return to work, but instead exercised their election for the indemnity in lieu of reinstatement. Following this, INPS sought repayment of the NASpI received for the preceding period and suspended payment for the subsequent period.
At first instance, the Tribunal dismissed the employees’ claim. In the Tribunal’s view, once the dismissal had been annulled and the employment relationship restored, the condition of unemployment ceased to exist, with the consequent obligation to repay NASpI. Moreover, the exercise of the election was characterised as a voluntary act of the employee, capable of giving rise to unemployment that was not involuntary and therefore incompatible with continued receipt of the benefit.
The Court of Appeal of Turin fully upheld that reconstruction. In particular, it distinguished between two periods of time. As regards the period between the dismissal and the exercise of the election, it held that the employment relationship had been restored ex tunc by the judgment annulling the dismissal, with the consequence that NASpI had to be repaid. As regards the period following the election, it likewise denied entitlement to the benefit, on the ground that termination of the relationship stemmed from an expression of the employee’s will and therefore gave rise to unemployment that could not be classified as involuntary.
The employees’ position, reiterated before the Supreme Court, insisted on two points: the continuation of entitlement to NASpI until actual de facto reinstatement and, at least in the alternative, entitlement to the benefit from the date of the election, which they argued should not be treated as a freely renunciatory choice but rather as part of the pathological consequences of the unlawful dismissal.
Decision of the Court
The Supreme Court upheld the employees’ appeal only in part, drawing a clear distinction between the period preceding and the period following the exercise of the election.
On the first issue, the judgment states that entitlement to NASpI does not lapse merely as a result of the ruling ordering reinstatement. What is required is the de facto restoration of the contractual synallagma, namely an actual resumption of the employment relationship, including in its economic dimension. Therefore, where such restoration has not occurred, the condition of need justifying the social security benefit cannot be regarded as having ceased. It follows that the decision on the merits was erroneous insofar as it had automatically treated NASpI as recoverable for the intermediate period between dismissal and election, relying solely on the de iure restoration of the employment relationship.
A different solution was adopted for the period following the election. Here, the Supreme Court confirmed the approach taken by the Court of Appeal: the election for the indemnity in lieu of reinstatement is a juridical act of the employee, constituting the exercise of a potestative right, producing irreversible effects and entailing, by operation of law, the termination of the employment relationship. Precisely because termination of the relationship derives from the employee’s own choice, the ensuing unemployment cannot be characterised as involuntary. For that reason, NASpI is no longer payable after the election.
The decision is therefore significant in that it reconciles the two dimensions of the case: on the one hand, it strengthens social security protection during the period in which the employee, although successful in litigation, has not yet been concretely reinstated; on the other hand, it reaffirms that the election for the fifteen-month indemnity marks a definitive break, transforming the subsequent absence of employment into a condition no longer protected by NASpI. The cassation with remand therefore requires the territorial court to conduct a fresh examination limited to verifying entitlement to the benefit for the period preceding the election, in light of the criterion of “de facto restoration.”