All the reasons for employment are required to reassess an independent work relationship (Il Quotidiano del Lavoro of Il Sole 24 Ore, 22 October 2018 – Alberto De Luca, Lucio Portaro)
With judgement dated 15 October 2018, No. 25711, the Court of Cassation provided again its opinion on what are the requirements (and to which magnitude they are relevant) for a work relationship qualified as independent to be reclassified as employment relationship.
The ruling originated from an appeal filed at the Court of Milan by eight service providers that requested the verification of the illegitimate nature of various types of agreements (for example, contractor agreement, project-based agreement) that followed each other over time with the same employer and, thus, the verification of the existence of an employment relationship associated with them.
Both judgements rejected the claims of the workers, since the Single Judge first then the Court of Appeal deemed legitimate the agreements entered into between the parties and, above all, insufficient the elements brought forth to support the claims of the workers to demonstrate the existence of an employment relationship between the parties.
One of the losing parties appealed at the Court of Cassation, claiming a breach and false application of the law by the judges in charge, since they did not deem proven the employment relationship while at the presence of several factors indicating subordination, among which: compliance with working hours, methods of calculation and payment of the salaries, lack of entrepreneurial risk for the providers, method of control of the business performance.
In this sense, the Court of Cassation specified how these claims could not be accepted and how they were unfounded.
In fact, the Court of Cassation judges, confirmed how they could not perform a new review and how it is up to the judge in charge to assess whether the elements and the facts provided are suitable to the type of agreement chosen by the parties when the employment relationship is established.
At the same time, however, they underlined, based on a unanimous and consolidated opinion, that the type of agreement (that is the “nomen juris”) ‹‹adopted by the parties entering the agreement, without any absolute and critical nature, cannot be fully ignored and may be considered an ancillary aspect to consider when it is difficult to distinguish between independence and discrimination››.
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