Exceptions to the motivation obligation in fixed-term contracts and the reason behind the Inspectorate’s note of 12 May 2021 (Norme & Tributi Plus Diritto – Il Sole 24 Ore, 7 June 2021 – Alberto De Luca, Stefania Raviele)

Since the beginning of the pandemic, the strict restrictions on the possibility of concluding fixed-term contracts have been suspended for the obvious purpose of favouring employment (albeit fixed-term), which was severely damaged by the economic fallout of the epidemic. Indeed, as early as with the law converting Decree Law no. 18/2020 (so-called  Cura Italia), the possibility of concluding fixed-term contracts had been introduced as an exception: (i) to the prohibition of concluding fixed-term contracts or temporary work contracts in production units where social safety nets were also being used (Art. 20, par. 1, letter C) and Art. 32, par. 1, letter c), Legislative Decree. no. 81/2015); (ii) to the obligation to have a period of unemployment elapse between a fixed-term contract and its renewal with the same employer (so-called stop&go, Art. 21, par. 2 of Legislative Decree 81/2015); and (iii). Further exceptions to the ordinary rules on fixed-term contracts were then introduced with the so-called Rilancio Decree whose Art. 93 introduced an exception to the motivation obligation [translator’s note: the obligation whereby a fixed-term contract must be justified] in the case of the renewal or extension of fixed-term contracts in force on 23 February 2020, by 30 August 2020. Since it was not clear, from reading the rule, whether this right of extension or renewal without motivation was possible only for contracts expiring by 30 August, the National Labour Inspectorate intervened with note no. 160 of 3 June 2020, confirming that the double condition for the enforcement of this option necessarily required the existence of the fixed-term contract on 23 February and the expiry of its term by 30 August 2020, so that contracts existing on 30 August but not expiring by that date could not be renewed or extended. The August Decree further reworded the exception to the motivation obligation, establishing the possibility of extending or renewing fixed-term contracts without motivation for “no more than twelve months and once only”, though within the limit of “a maximum total duration of twenty-four months”, no longer requiring that the renewed fixed-term contract had already been in place on 23 February, and extending the possibility of an extension or renewal by 31 December 2020 also to contracts expiring after that date. The scope for the application of extensions and renewals without motivation was subsequently extended until 31 March and, later on, until 31 December 2021 (Art. 17 of the Sostegni Decree. Therefore, according to current law, fixed-term contracts may be extended and/or renewed until 31 December 2021, without motivation, once only and for a period of 12 months provided that employment does not last longer than 24 months. However, the sequence of extensions and renewals (of the legislation derogating from the motivation obligation) did not discuss or even only mention the fundamental clarification contained in the very first emergency legislation (Art. 19bis Cura Italia Decree) which clarified that fixed-term contracts could be extended and/or renewed even where social safety nets were in place.
 To the relief of the operators in the sector, the National Labour Inspectorate intervened once again on this point in note no. 762 of 12 May 2021 specifying that Art. 19bis is still to be regarded as in force since it is a rule used for the authentic interpretation of Arts. 19 to 22 of Decree Law 18/2020 which introduced the emergency social safety nets, never repealed and extended from time to time.

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