Reclassification of the self-employment relationship even in the absence of direct evidence of employer direction

The Italian Court of Cassation, by order No 1095 of 16 January 2023, held that for the purpose of reclassifying a relationship of self-employment into a subordinate one, it is possible to use subsidiary evidence (such as the continuity of service, compliance with a predetermined schedule, the receipt of a fixed monthly fee, the absence of risk and an organisational structure on the part of the worker) where there is no direct evidence of employer direction.

The facts of the case

The Supreme Court’s decision arises from proceedings brought by an IT consultant who had worked under multiple consecutive self-employment contracts, on behalf of the principal, as a system assistant at the judicial offices of Arezzo.

The Court of Pisa, in the first instance, had rejected the application for reclassification, confirming the self-employment nature of the relationship in the absence of proof of the employer’s direction.

The worker appealed against this decision before the Florence Court of Appeal complaining that the first-instance judge had not given enough importance to all the evidence that, although not sufficient to demonstrate employer direction, was sufficient to constitute proof of the subordinate relationship between them.

In the context of the second instance judgment, the territorial Court, overturning the decision of the first instance judge, held that there was an employment relationship based on the following evidence:

• the self-employment contracts (called consulting assignments) covered the details of the services to be provided by the collaborator in a completely generic way. Thus, notwithstanding the express classification of the relationship as self-employed, the wording of the contracts did not contain any elements contradicting the existence of a subordinate relationship, which, on the contrary, was confirmed by the stipulation of remuneration commensurate with the number of working days;
• the worker used work equipment provided by the principal, with the consequent absence of financial risk on the part of the service provider;
• the principal exercised control over the employee’s hourly and daily workload, who performed his services according to the company’s needs;
• entirely similar functions were entrusted, at another judicial office, to a technician employed by the company.

The company appealed against the judgment of the Court of Appeal before the Italian Court of Cassation.

The Italian Court of Cassation’s decision

The Italian Court of Cassation rejected the appeal, confirming that the Court of Appeal, having failed to find direct evidence of so-called ‘employer direction’, had correctly resorted to circumstantial evidence which, in this case, constituted suitable and significant evidence of a para-subordinate relationship.

Therefore, even in the absence of employer direction, the Court of appeal found that the existence of a subordinate relationship had been proved as (i) there was control over the hourly and daily workload; (ii) the remuneration was commensurate with the working days; (iii) the employee had no financial risk; (iv) the employee performed his services at the requested times; (v) the generic details of the services to be provided under the collaboration indicated in the contract and the absence of an obligation to achieve results.

In view of all the above, the Italian Court of Cassation dismissed the appeal filed by the company and ordered it to pay the litigation costs.

Other related insights:

• SELF-EMPLOYED AND PARA-SUBORDINATE WORK

• The “uniform time” is payable only if compulsory