European Court of Justice: interpretation of the directive on collective redundancies

The Court of Justice of the European Union, with sentence no. C-422/14 of 11 November 2015, intervened on two central points of the European directive on collective redundancies (98/59/EC). In this case (i) the calculation criteria for company size which makes the law governing collective redundancies applicable and (ii) the notion of redundancy useful for determining the numeric limit above which the directive on collective redundancies applies. In terms of the first point, the Court observed that, for the purposes of calculating the number of employees for application of the directive on collective redundancies, that workers employed for a fixed term form part of “normally employed workers”. In terms of the second point, the Court established that for the calculation of the five redundancies “any termination of the employment contract not desired by the worker and, thus, without his consent” is considered a redundancy, including resignations submitted by an employee due to unilateral changes made by the employer to an essential element of the employment contract for reasons not related to that individual worker. The impact of this ruling on Italian law will be mitigated in terms of the first point, since the Jobs Act requires that the calculation of employees . for the purposes of applying any legal or contractual provision – must take into account workers employed under a contract for a fixed term, by applying a specific calculation criteria (article 27 Legislative Decree 81/2015). The repercussions regarding the second point could be significant, since dismissals, according to our laws, even if for “just cause” have always been excluded from the calculation of the numeric threshold for application of the aforesaid law.