With ruling no. 2618 of February 4, 2025, the Italian Supreme Court upheld the legitimacy of the dismissal for just cause of an employee who, while on parental leave, engaged in parallel employment, thus abusing this right.
In the case in exam, during his parental leave, the employee had started a car-buying and selling businesswithout giving prior notice to the employer. The activity was uncovered following an investigation carried out by a private agency commissioned by the employer. According to the investigation, it emerged that the parallel employment was neither occasional nor episodic, thus conflicting with the purposes of paid parental leave. As the Supreme Court stated, these purposes «require that during its enjoyment, the time and energy of the working father be dedicated, even through his presence, to fulfilling the emotional needs of the child».
This conduct, constituting an abuse of parental leave, therefore justified the employee’s dismissal. The Supreme Court stated: «where it is established that the parental leave is used by the father to engage in a different work activity, it constitutes an abuse of the right for diversion from the function of the right, which can be assessed by the judge to determine the existence of a just cause for dismissal. It is not relevant that the performance of such activity contributes to a better organization of the family».
Therefore, the Court reaffirmed that parental leave, while being a right of the working parent, cannot be used for purposes unrelated to those for which it was established.
In conclusion, the abuse of parental leave justifies a dismissal, as it constitutes not only a serious violation of the employee’s duty of loyalty but also a behavior with clear social disvalue, in light of the social and economic costs involved.
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The Corrective Decree on Public Procurement (Legislative Decree No. 209/2024), which came into force on December 31, 2024, was introduced to provide greater protection for workers employed in outsourced activities, as well as to ensure increased transparency regarding their economic and contractual conditions.
The Corrective Decree amended and supplemented Legislative Decree No. 36/2023 (Public Contracts Code), establishing, among other things, the obligation for contracting authorities to specify, at all stages of the tendering procedures, the applicable national collective labor agreement for the personnel employed under the contract.
Similarly, it was established that in the case of contracts that include separable, secondary, ancillary, or subsidiary services, where such services differ from the main subject matter of the contract or concession and represent, for a threshold equal to or greater than 30%, the same homogeneous category of activity, the contracting authority must indicate in the tender documents “the national and territorial collective labor agreement in force for the sector and for the area where the work is to be performed, signed by the most representative employers’ and workers’ associations at the national level, applicable to the personnel engaged in such services.”
Also of significance is the amendment to Article 11, paragraph 4, of the Code, which clarifies that the verification of the declaration of equivalence of protections relating to the personnel employed in the contract, submitted by the economic operator, must be carried out in accordance with the procedures set out in Article 110 of the Code and in line with the new provisions of Annex I.01. Equally relevant is the amendment to Article 119, paragraph 12, which provides that in the case of subcontracting, “the subcontractor… is required to apply the same collective labor agreement as the main contractor, or a different agreement, provided that it guarantees employees the same economic and regulatory protections as the one applied by the main contractor, where the subcontracted activities coincide with those that characterize the subject matter of the contract or concern the services falling under the prevailing category.”
In practice, according to Annex I.01, agreements signed by the same trade unions (that are comparatively more representative), even if concluded with different employers’ associations from those that signed the collective agreement indicated by the contracting authority, are presumed to be equivalent. However, this presumption of equivalence applies only insofar as the collective agreement pertains to the same sub-sector and is “corresponding to the size or legal nature of the undertaking.”
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The appointment for the 5th Welfare & HR Summit of Il Sole 24 Ore is on Thursday 20 February from 3 p.m. onwards. The event will see the participation of Vittorio De Luca among the experts convened to take stock of the new paradigms for companies, between new regulations and social changes.
Vittorio De Luca will analyse the main labour law aspects related to the discipline of contracting and the innovations introduced, most recently, by the ‘Corrective Decree’, which, in line with the most recent regulatory, administrative and jurisprudential interventions, aims to make the contracting system more transparent, with the ultimate goal of protecting workers employed in outsourcing. An approach that will also have a considerable impact on companies that use third-party suppliers, which are obliged to adapt quickly.
Click here for further details and to register for the event.
Italian Law 104/1992 grants employees paid leave to assist family members with disabilities, with the cost covered by INPS (the National Institute for Social Security). However, misuse of this benefit has led to judicial investigations to identify potential violations of the law. Case law has helped clarify what constitutes abuse.
The law grants leave for caregiving but does not clearly define the conditions under which its use becomes abusive. In general, courts have adopted a broad interpretation, stating that caregiving includes all tasks a disabled person cannot perform independently, not just personal assistance at home.
In a recent ruling (October 10, 2024, no. 26417), the Italian Supreme Court clarified that caregiving does not require constant presence at the family member’s home, but can include errands, as long as they are aimed at the disabled person’s well-being. The Court also confirmed that using leave outside working hours does not count as abuse, since the leave is granted on a daily, not hourly, basis.
In another ruling (September 9, 2024, no. 24130), the Court stated that personal activities, as long as they do not interfere with caregiving, are not considered abusive. However, if the employee engages in activities far from caregiving, such as going to the beach instead of assisting a family member (Cass. Civ., Labor Section, June 16, 2021, no. 17102), it is considered misuse, and the employer can take disciplinary action, including dismissal for just cause.
Employers can hire investigative agencies to check for abuse, but these investigations must be conducted within legal boundaries, respecting the employee’s privacy.
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Article 33 of Law 104/1992 regulates paid leave ‘for the assistance, social integration and rights of disabled persons’.
These permits consist in the possibility for public or private, full-time or part-time employees to be absent from work, while retaining the right to remuneration and figurative contribution coverage for pension purposes, in order to assist a disabled person in a situation of seriousness, who is not hospitalised on a full-time basis.
A ‘disability in a situation of seriousness’, pursuant to Article 3(3) of Law 104/1992, is defined as a single or multiple impairment that has reduced personal autonomy, related to age, in such a way as to require permanent, continuous and comprehensive assistance in the individual sphere or in the sphere of relationships.
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