TV extras are not employees (Il Quotidiano del Lavoro of Il Sole 24 Ore, 15 October 2018 – Enrico De Luca, Elena Cannone, Antonella Iacobellis)

With a lawsuit filed at the Court of Rome, a worker claimed of having provided his work under employment conditions for two specific time periods for a company providing design, implementation and production of TV programs, as part of a broadcast and to have been dismissed verbally. Specifically, the appellant claimed (i) of having written the questions to be submitted to the TV program’s guests, (ii) of having participated to the TV program as part of the audience, (iii) of having received during the employment relationship orders, directives and instructions from the company’s representatives, (iv) of having worked within pre-established work hours, of having requested authorisation in the case of absence, (v) of having been subjected to two disciplinary actions; (vi) of having received a fixed and pre-established compensation in both periods and to have used tools and instruments owned by the company to carry out his work activity.

The worker sued also, alternatively, the company casting extras thus requesting to the judge: – the verification and statement of the employment relationship with all legal consequences from a salary and social security contribution stand point; – payment of damage suffered due to exploitation of his image; – the ineffectiveness of the verbal dismissal ordered with consequent right to be reintegrated at work and any further legal consequence. The Court rejected the claims of the appellant, ordering him to pay the legal costs.

After the first instance ruling, the worker filed an appeal based on the following: 1.failure to verify the existence of employment relationship pursuant to art. 61 of Legislative Decree No. 276/2003; 2. failure to provide a reason on the existence of employment relationship pursuant to art. 61 of Legislative Decree No. 276/2003; 3. breach of articles 115 and 116 of the Italian Code of Civil Procedure; 4. Failure to review the various claims filed.

The Court of Appeal having jurisdiction (Court of Appeal of Rome, Labour Division, Judgement 3.4.2018) deemed as unfounded the first and the second reason, considering them together due to their logical association. According to the Court of Appeal, in fact, the company casting the audience and extras in their defence brief highlighted the occasional nature of the performance carried out by the appellant specifying that the audience and extras were called to participate to TV programs from time to time, organised respecting their personal commitments, and thus there was no pre-established and agreed schedule for their presence. The worker, instead, did not specify, even if he had the burden of proof, that an agreement existed with one of the defendant companies that would govern and guarantee the carrying out of the activities for a specific number of days per month. Therefore, in the opinion of the local Court, the requirement of continuity of work performance was not met. Moreover, in the opinion of the Court, the worker did not object, in his appeal, to the aspects of the first instance ruling that disputed the subordinate nature of the employment relationship Instead he simply reported literally the legal claims detailed in the first instance appeal. For said reasons, according to the Court, it was not even possible to accept the reason of the appeal related to the employment nature of the business relationship. Finally, the Court did not even accept the reason of the appeal related to the request for payment of damage that was suffered due to exploitation of his image, considering that the appellant himself had implicitly agreed to the publication of the image by participating to the recording of the TV program “solely destined to be broadcast”.