The stability pact, its legitimacy and remuneration

With its decision no. 14457/2017, the Court of Cassation turned over the “double conforming” decision of the lower courts and intervened with regard to the stability pact enclosed with the subordinate employment contract. Specifically, the Court observed that, outside the cases of just cause under Art. 2119 of the Italian Civil Code, a worker can freely make use of the right of withdrawal, agreeing to a minimum guaranteed duration of the contract, provided that it is limited in time, which would involve the payment of damages to the employer in the event of a breach thereof. According to the Supreme Court, this conclusion complies with the recognised availability of the right to one’s employment post, that may be inferred from the admissibility of agreed contractual terminations and also from the “consolidation of the effects of an unlawful dismissal due to failure to make a prompt appeal”. In the decision in question, the Court also looked at the remuneration of this “sacrifice” and reached the conclusion that the agreed salary conditions, taken overall, provided that they do not exceed the so-called constitutional minimum, cannot, in any way, compensate for the (even) temporary renunciation of the employee to their right of withdrawal. The remuneration, therefore, must be assessed in the light of the overall agreed contractual conditions, which may consist of the reciprocal nature of the stability commitment or in a different service provided by the employer, such as an increased salary or a non-monetary obligation, provided that it is not just symbolic and it is proportionate to the sacrifice of the worker.