Q&A

Q&A

PROBATION CLAUSE

Should the probation clause indicate the tasks to be carried out by the worker?

According to the Court of Cassation, a clause attached to the employment contract containing a longer probation period than that laid down by the collective labour agreement must be considered more unfavourable by the worker and, as such, automatically substituted, except where the extension actually results in a favourable position for the worker, with the burden of proof on the employer. Subject to the maximum duration of the probation period set by article 10 of Law 604/1966 (six months), this clause may be deemed legitimate only where the particular complexity of the duties agreed for the employee makes it necessary, for the purposes of a valid test, and in the interests of both parties, to have a longer period than that considered reasonable by the collective parties in the generality of cases.

Smart Working

What is smart working?

Smart working, regulated by Law 81/2017, is a mode of execution of the employment relationship that helps the worker to reconcile life and work times and, at the same time, to promote the growth of their productivity.

Smart working must be established through a written agreement between employer and employee, including forms of organization by phases, cycles and objectives and without precise constraints of time or place of work, with the possible use of technological tools for carrying out the work activity.

The work must be carried out partly inside the company premises and partly outside, without a fixed workstation, within the limits of maximum daily and weekly working hours deriving from the law and collective bargaining.

The employer is responsible for the safety and proper functioning of the technological tools assigned to the employee for carrying out the work activity.

Tasks

Can an employee be demoted/unassigned from a task?

In our legal system, the principle applies according to which the employee must be assigned to the tasks for which they were hired or to those corresponding to the higher classification that they may have achieved. However, pursuant to art. 2013 of the Italian Civil Code, the worker may be assigned to inferior tasks:

  • in the event of a change in the organisational structure affecting their position. In this case, the worker may be assigned tasks belonging to a lower level as long as they fall within the same legal category and without prejudice to the remuneration;
  • in the presence of an individual agreement entered into, in the interest of the worker to maintain their job, to acquire a different professional qualification or to improve living conditions, in protected proceedings or before the Certification Commission. Such an agreement may provide for a change in the legal category, grading level and the relative remuneration.

Holidays

Can holidays be replaced by an allowance?

Holidays are a constitutionally guaranteed right, which cannot be renounced, the use of which has the purpose of guaranteeing the worker to recover mentally and physically, which, in any case, must take into account the productive and organizational needs of the company.

In order to guarantee this right, the Legislative Decree 66/2003 introduced a ban on monetising holidays, thus preventing them from being replaced by a special allowance.

They can, however, be monetized:

  • holidays accrued but not taken by the worker whose employment relationship ends during the year;
  • the weeks or days of holiday leave provided for in the collective agreement to a greater extent than the statutory minimum period of 4 weeks.

Illness

What is the difference between a dry grace period and grace period on a cumulative basis?

Article 2110 of the Italian Civil Code establishes that in the event of incapacity to work for a certain period of time, known as the grace period, the duration of which is determined by the National Collective Labour Agreements, the worker has the right to retain their job, with the consequent prohibition of dismissal for the employer. The grace period can be dry or fractionated/on a cumulative basis. The dry grace period occurs when the period of suspension of the employment relationship is unique and continuous; the grace period is fractioned/on a cumulative basis in the presence of several periods of illness in a given period of time, interspersed with periods of resumption of work activity.

Tender Contract

When can a tender contract be considered lawful?

Pursuant to art. 1655 of the Civil Code, the tender contract is the “contract whereby a party assumes, with the organization of the necessary means and with management at their own risk, to fulfil works or services for a monetary consideration”. Therefore, the tender contract can be considered lawful when the following indicators of genuineness occur at the same time:

  • organisation of the necessary means by the contractor, which may also result from the exercise of organisational and managerial power over the workers involved in the tender contract;
  • assumption of business risk by the contractor, who must be accountable to the client for the final result.

In the absence of such requirements, the worker engaged in the contract may take legal action to request the establishment of an employment relationship with the person who used their service (client).

Privacy in the employment relationship

Should employees be required to give their consent to process their data in the context of the employment relationship?

Employees should not be required to consent to the processing of their data in the context of the employment relationship. This is because the consent, due to the relationship of “dependence” of the worker on the employer, could never be considered freely given or, for the same reasons, freely revocable. It is understood that the employer must provide the worker with an appropriate information notice and implement technical and organizational security measures to ensure the integrity and confidentiality of data processed.

COMPLIANCE WITH LEGISLATIVE DECREE 231/2001

What is the administrative liability of the body?

Legislative Decree no. 231/2001 (the “Decree“) introduced for the first time into our legal system a specific form of administrative liability for companies. Specifically, companies are liable for certain offences (so-called predicate offences) committed in their interest or to their advantage by top management or their subordinates. And this liability translates into the subjection of companies to two types of sanctions: pecuniary or prohibition. A specific form of exemption from this liability is the adoption and implementation of an organisational model suitable for preventing the commission of the offences envisaged by the Decree.

What is the Supervisory Body (OdV)?

Pursuant to article 6 of Legislative Decree no. 231/2001, the OdV is a body of the entity that has autonomous powers of initiative and control, it must show characteristics such as independence, autonomy, professionalism and continuity of action, thus reflecting the entity’s willingness to create an organisation that, as far as possible, prevents the commission of offences. The OdV’s duties include:
(i) supervising the effectiveness of the Organisation, Management and Control model (the “Model”) implemented by the entity, expressed in terms of the consistency between concrete behaviours and the Model adopted;
(ii) monitoring the maintenance over time of the requirements of solidity and functionality of the Model implemented;
(iii) managing updates to the Model on an ongoing basis, by incorporating amendments and adjustments as required.
Based on the specific needs of the organisation, the OdV can be structured in monocratic form or as a collegiate body. Its members may be either internal or external to the organisation that identifies it. In any event, its members must possess the appropriate professional skills as well as an in-depth knowledge of the entity’s organisational structure, the Model adopted and all the special parts that feature within it.