Ancillary criteria for the qualification of a labour relationship as employment

The Court of Cassation, with judgement No. 23846 filed on 11 October 2017, intervened on the qualification of a self-employment relationship as employment. In the specific case, the Court of Cassation stated that subjugation to managerial and disciplinary power cannot be an exclusive criterion to determine whether employment is or is not occurring. This is because, based on the type of task assigned to the worker and the context in which the service is carried out, other characteristics pertaining to the relationship must also be assessed. In ruling, the Court of Cassation followed a consolidated trend on the basis of which, if it is not possible to use as the sole criterion the subjugation of the employee to the managerial, organisational and disciplinary power [of the employer], it is possible to make use of distinctive ancillary criteria such as: (i) continuity and duration of the relationship; (ii) methods of remuneration payment; (iii) work time regulations; (iv) existence of a self-organization power of the employee. And in this case, it was clear that, contrary to the adopted nomen iuris, (a) the work was carried out on company premises, according to predetermined work schedules and subdivided into shifts established by the employer; (b) the services were performed according to a timetable which the workers, once accepted the shift, had to respect; (c) in the event of unavailability, the workers were required to give prior notice to the employer; (d) they had no personal equipment and did not incur any financial risk, since their remuneration was guaranteed; (e) the worker who was unable to go to work had to inform in advance. Specifically, in this context, the Court stated that the absence of disciplinary power could not per se lead to the denial of an employment relationship, with particular reference to standardised services, subjected to continuous checks and direct corrective measures which leave little room for its implementation.