Self-employed and para-subordinate work

The self-employed relationship is distinguished from subordinate employment by the absence of the worker’s subordination to the managerial, supervisory and disciplinary powers of the employer.

The relationship qualification identified in the employment contract is unsuitable for qualifying the relationship as self-employed or subordinate since a judge must refer to the practical method in which the service is carried out if there is a dispute.

Case law has identified a series of indices which may lead to the conclusion that the employment relationship, although qualified as self-employed by the parties, conceals a form of subordination.

More specifically, the auxiliary indices identified by case law are:

• the observance of specific working hours;
• payment of a predetermined salary at fixed intervals;
• the coordination carried out by the employer and no worker entrepreneurial structure;
• service continuity;
• the worker using the employer’s tools;
• the work performance in premises provided by the employer;
• the applicability of disciplinary sanctions to the worker.

The action to reclassify a self-employed relationship as a subordinate relationship may be brought by the worker and, during an inspection, by the authorities responsible for monitoring the correct classification of employment relationships (i.e., Labour Inspectorate, INPS).

A relationship requalification would entail the following consequences for the employer:

• the worker’s right to the differences in salary between what was paid for carrying out their work and the minimum salary provided for the applicable National Collective Labour Agreement;
• the worker’s right to severance pay, which varies depending on the worker’s salary and seniority;
• the employer’s obligation to make the worker compliant with social security for unpaid contributions payment, penalties and fines due to failure to pay contributions;
• the application of other typical employment measures to the worker’s benefit (for example, the right to job retention during illness, paid leave and holidays, etc.);
• the application of legal protections for dismissed workers.