Employment and employee benefits in Italy: overview
A Q&A guide to employment and employee benefits law in Italy.
The Q&A gives a high level overview of the key practical issues including: employment status; background checks; permissions to work; contractual and implied terms of employment; minimum wages; restrictions on working time; illness and injury; rights of parents and carers; data protection; discrimination and harassment; dismissals; redundancies; taxation; employer and parent company liability; employee representation and consultation; consequence of business transfers; intellectual property; restraint of trade agreements and proposals for reform.
To compare answers across multiple jurisdictions, visit the Employment and Employee Benefits Country Q&A tool.
The Q&A is part of the Multi-jurisdictional Guide to Employment and Employee Benefits law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employment-mjg.
Scope of employment regulation
Foreign nationals working in your jurisdiction?
Nationals of your jurisdiction working abroad?
Laws applicable to foreign nationals
The parties can choose the law that governs the employment contract (Article 6, Rome Convention on the law applicable to contractual obligations (1980/934/EEC) and Article 8, Regulation (EC) No. 593/2008 on contractual obligations (Contractual Obligations Regulation)). However, most Italian employment legislation is mandatory, which means it applies independently of the choice of the parties.
Laws applicable to nationals working abroad
As a general rule, if the work is performed abroad, Italian law does not apply, unless the parties have chosen Italian law as the applicable one. In this case, foreign rules can also apply.
Categories of worker
Subordinate employees. Defined under Article 2094 of the Italian Civil Code as those who, in consideration of a certain salary, bind themselves to perform their intellectual or manual work activity within the company, under the management and the control of their employer.
Self-employed workers. Defined under Article 2222 of the Italian Civil Code as those who, in consideration of a certain remuneration, undertake to perform a piece of work or to provide a service, primarily by their own effort and without a relationship of subordination with respect to the principal.
Project based workers. These are self-employed workers who collaborate on an ongoing basis with the principal to perform a specific project defined by the principal itself and managed autonomously by the worker, which must be aimed at a specific final outcome that must differ from the usual object of the principal's business.
Commercial agents. These are self-employed workers paid to undertake to continuously promote the conclusion of a series of contracts in a certain area on behalf of the principal.
Entitlement to statutory employment rights
Generally speaking, subordinate employees are entitled to all statutory employment rights (for example, holiday, sick leave, maternity leave, and so on). While self-employed workers enjoy almost none of the rights granted to subordinate employees, project based workers, instead, are entitled to most of the statutory rights provided for subordinate employees (sick leave, parental leave, and so on). Furthermore, subordinate employees enjoy strong protection in the case of unfair dismissal, ranging from the payment of an indemnity to reinstatement (see Question 20).
The contract of a subordinate employee hired on a fixed-term basis for a specific reason can only last up to 36 months. If the employee is hired as an executive for a fixed-term period, the contract cannot last more than five years. Failure to comply with these maximum durations can result in the employee being deemed a permanent employee. The limitations on the relationship with project based and self-employed workers is related not to a specific time frame, but to the completion of the project or the specific work or service.
Grants or incentives
There are a number of incentives (for example, reduced social security contributions), which are available to companies that employ certain categories of people, including:
Young people between 15 and 29 years of age under specific kinds of contracts (such as apprenticeship contracts).
Long-term unemployed persons over the age of 50 and unemployed women of any age who have been unemployed for a period of between six and 24 months, depending on whether they reside in certain disadvantaged regions.
Disadvantaged persons (that is, persons subject to redundancy procedures or affected by disability).
Funding is also available if the company is based in certain parts of Italy.
Parliament has finally approved new measures by amending Decree No. 76/2013 in Law No. 99, 9 August 2013, which among its provisions, provides incentives through tax cuts to employers hiring employees between 18 and 29 years of age on a permanent basis (see Question 33).
Compulsory online filings, introduced by the Ministry of Labour, are required when hiring, terminating, transforming or extending the contracts of any category of workers for administrative purposes (and also for any purposes related to social security).
Both during the recruitment procedure for the purpose of hiring an applicant and throughout the course of the employment relationship, the employer is prohibited from carrying out (directly or by using third parties) investigations concerning political, religious or union-related opinions or any other kind of opinion concerning circumstances that are not relevant for evaluating the professional attitude of the employee to perform a specific job. Questions concerning employees' health are only permitted provided that they are deemed to be crucial for the job that is to be performed. Questions related to past criminal records are only permitted if a clear police certificate is deemed to be a requirement for the kind of job to be performed. Questions related to pending criminal proceedings are not allowed.
Permission to work
Procedure for obtaining approval. As a general rule, most foreign nationals require a visa to enter and work in Italy, except for:
European Economic Area (EEA) citizens. They can enter and reside in Italy without a permit if their stay is less than three months. For longer stays, they must be enrolled at the public register of the town council where they reside.
Non-EEA citizens who already have a residence permit from another EEA country. They can enter and stay in Italy for eight days without a residence permit. After this period, they must obtain one.
For further details, a list of the nationalities that require a visa to enter Italy (on the basis of the duration of, and reasons for, the visit) is available on the website of the Ministry for Foreign Affairs, at: www.esteri.it/.
Cost. Administrative costs for obtaining a visa range from EUR60 to EUR105.
Time frame. A visa can be granted within approximately 30 days.
Procedure for obtaining approval. Non-EEA citizens cannot work in Italy without an Italian work permit to stay, regardless of the length of their stay. The Italian government fixes a ceiling annually (quota) on the number of permits to be issued. However, in exceptional cases, employees belonging to certain categories (for example, executives, highly skilled employees, university lecturers and translators) can access the Italian employment market outside the fixed quotas.
Italian employers must fill in and submit a pre-application form on the internet (further information is available at www.interno.it). This must include an offer to enter into a residence contract with the foreign national employee for work reasons. If this is accepted (subject to annual quotas and conditions), the prospective employer must attend a meeting at the relevant Immigration Office to sign the residence contract and produce all necessary documentation. In the case of a secondment, or other exceptional cases, the Italian company to which the foreign national employee is to be seconded must apply directly to the relevant Immigration Office for the permit to stay. The application must include:
A duly completed application form.
A proposal to enter into a residence contract with the foreign national employee for work reasons.
The Italian company must also comply with the following:
It must provide suitable accommodation for the non-EEA citizen and declare in the application that this will be made available.
The employer must have regularly paid the social security and insurance contributions due for its workforce.
Collective redundancies must not have taken place in the employer's company during the last year.
An employee with the same professional skills as the non-EEA citizen, and who used to carry out the same job as the one intended for the non-EEA citizen, must not have been dismissed.
If a fixed-term contract is being offered, it must comply with legal requirements.
After the necessary checks have been made, the Immigration Office sends the authorisation to work to the Italian consulate or the embassy of the country where the foreign national is resident.
The consulate or embassy then issues a visa (see above, Visa) which allows the employee to enter Italy for work reasons. The foreign national, within eight days of entry into Italy, must go to the Immigration Office to sign the residence contract for employment and obtain a tax code (codice fiscale). The employee signs the residence contract at the same time as the pre-application form for a work permit. After the necessary checks, the work permit is issued by the provincial police office headquarters, which also informs the Immigration Office. The Immigration Office then calls the employee for delivery of his work permit.
Cost. Administrative costs for obtaining a work permit range from EUR80 to EUR200.
Time frame. There is no fixed time frame applicable to obtaining these permits, but it usually takes about three months. This process takes longer if the relevant quotas (see above) are reached.
Sanctions. Employers who hire foreign nationals who do not have the appropriate permit, or whose permit has expired or has been revoked, can be sentenced to from three to five years in prison, and be required to pay a criminal fine equal to EUR5,000 for each irregular worker. These sanctions can be increased by between one third and up to half as much as the original sanction when either:
More than three employees are involved.
The employees are under 18 years of age.
The employees have been exploited.
Restrictions on managers and directors
There are no age restrictions on managers or company directors.
There are no nationality restrictions on managers or company directors.
A person cannot be appointed as a company director if he does not have the legal capacity. Furthermore, there are certain categories of individuals (such as members of Parliament, civil servants, and so on) who cannot perform activities as company directors whilst they are in these positions.
Regulation of the employment relationship
Written employment contract
There is no specific requirement for a written employment contract. There is also no legal obligation to draft the contract in Italian. However, to be valid, certain clauses must be in writing (for example, a probationary period, a fixed-term period and a non-competition clause). In addition, the employer must inform the employee in writing (within 30 days of starting employment) of the:
Identity of the parties.
Place of work.
Date on which the contract begins.
Duration of the contract, specifying whether it is fixed-term or permanent.
Probationary period, if applicable.
Job title or category.
Duration of paid holidays.
Length of the notice period when terminating the contract.
The Civil Code implies certain employee obligations into the employment contract, which apply even if no reference to them is made within the contract itself, including:
Due diligence and care (paragraph 1, Article 2104, Civil Code).
Obedience (paragraph 2, Article 2104, Civil Code).
Non-competition during the employment and confidentiality (Article 2105, Civil Code).
There are also terms implied into the contract that limit the employer's management, disciplinary and monitoring powers.
Collective bargaining agreements (CBAs) between trade unions and employers' associations are common in all sectors. National CBAs are only binding on a company if it is a member of the relevant employers' association. If a company is not a member, it does not have to apply the CBA. However, the agreement applies if reference is made to it in the employment contract or the employer decides to adopt its terms of its own accord.
Generally, an employer cannot unilaterally change the terms and conditions of employment. The employee's consent to these changes is always required.
However, there are two strictly regulated exceptions to this rule where an employer is permitted to unilaterally change the employment contract, where the employer wishes to:
Change the employee's job.
Change the employee's place of work.
In the first case, the employer can unilaterally assign the employee to a different job, provided that the new job is equal or superior to the one carried out before. Changes that imply an assignment to lower duties are generally forbidden, unless in any specific case the law or relevant case law provide otherwise (generally speaking, the rationale behind this derogation is to avoid dismissal).
In the second case, the employer can unilaterally change the workplace, provided that there are organisational, technical or production reasons to do so.
There is no minimum wage either at national or regional level. However, employees are entitled to receive a salary commensurate with the quality and quantity of their work and, in any case, one that is sufficient to guarantee a decent lifestyle for themselves and their family (Article 36, Italian Constitution). When deciding these minimum levels of pay, the court often considers the minimum amount of salary set out in the national CBAs for the relevant sectors, even if the company does not apply them.
Restrictions on working time
The normal working week is 40 hours, and the maximum working week is an average of 48 hours every seven days, including overtime, calculated over a four-month reference period. CBAs can extend this reference period to six or 12 months provided that there are objective, technical or organisational reasons for doing so, and often provide for a shorter normal working week (for example, 37 or 39 hours).
Collective bargaining agreements regulate overtime. Where no collective agreement applies, overtime must be agreed between the parties, though overtime cannot exceed 250 hours per year.
The restrictions on working hours do not apply to employees if the duration of their work either:
Cannot be measured or pre-determined.
Is determined by the employees themselves (for example, executives, management staff, employees working from home, teleworkers and salesmen).
An employee whose working hours exceed six hours per day is entitled to a rest break during the working day. Normally CBAs regulate rest breaks, but where no CBA applies, a rest break cannot be less than ten minutes. Rest breaks can be allocated during the day to accommodate the technical requirements of the working processes.
Employees are entitled to a daily rest of at least 11 consecutive hours every 24 hours. In addition to the daily rest break, employees are entitled to a weekly rest period of at least 24 consecutive hours every seven days, usually coinciding with a Sunday.
Shift work is regulated by the relevant CBA.
Minimum holiday entitlement
All employees are entitled to a minimum of four weeks' paid annual holiday. CBAs and individual contracts can provide for a longer period of holiday entitlement. Annual leave cannot be replaced by payment in lieu, except where the employment contract is terminated.
There is not any statutory unpaid holiday entitlement. However, a collective bargaining agreement can provide for unpaid leaves of absence.
There are 12 public holidays, which are not included in the minimum holiday entitlement.
Illness and injury of employees
Entitlement to time off
CBAs or individual contracts generally provide for a period of time off as a result of illness or injury, during which the employee is entitled to keep his job. After this period, the employer can dismiss the employee by giving notice. This period is generally between six and 12 months, and applies in cases of both a single period of sick leave and multiple periods.
Entitlement to paid time off
In the case of illness or injury, employees are entitled to receive their salary in the proportion and for the period set out in any applicable collective agreement or the individual employment contract.
Recovery of sick pay from the state
The National Social Security Body (Istituto Nazionale Previdenza Sociale) pays part of the salary, depending on both:
The employee's qualifications and length of service.
The employer's business sector.
The employer pays the other part (under the relevant CBA), so that employees generally receive their full (or almost full) remuneration. The employer is not entitled to recover sick pay paid from the state.
Statutory rights of parents and carers
Parents (including maternity, paternity, surrogacy, adoption and parental rights, where applicable)?
Carers (including those of disabled children and adult dependants)?
Female employees must not work for two months before, and three months after, childbirth. This compulsory period of maternity leave can be changed to one month before and four months after childbirth, if a medical certificate is produced.
A female employee can request to go on early maternity leave in certain circumstances, for example, if her duties involve lifting or moving heavy objects. In this case, a medical certificate is required, together with authorisation from the Employment Office. However, the employer's consent is not needed.
During the entire pregnancy, and until seven months after childbirth, the employee must not be allocated tasks that might endanger her health.
During maternity leave, employees receive an allowance from the National Social Security Body equal to 80% of their salary.
In case of voluntary or therapeutic termination of pregnancy 180 days after the beginning of the pregnancy, or in case of the death of the child at birth or during maternity leave, female employees can return to work at any time with at least ten days' notice to the employer (subject to specific medical approval).
After maternity leave, employees are entitled to return to the same job in which they were employed before taking leave. Employers cannot dismiss female employees during pregnancy and until the child is one year old, except in certain circumstances (see Question 18).
Finally, the resignations and mutual termination agreements of parents with children under the age of three must always be validated and confirmed by such mothers or fathers through a special procedure. Failure to do so makes the resignation/mutual termination agreement ineffective.
If the mother does not take maternity leave (due to death, infirmity or the father having exclusive custody), the father is entitled to three months' paternity leave after childbirth. This right does not apply in any other circumstances.
Employees on paternity leave are entitled to the same allowance, have the same rights to return to their job after paternity leave and have the same protections against dismissal as employees on maternity leave (see above, Maternity rights).
Furthermore, under recent law, fathers should take one day, and possibly another two days, of paid paternity leave within five months of the child being born.
Finally, Italian law provides for a special procedure to validate and confirm resignations and mutual termination agreements made during the first three years of the child's life (see above, Maternity rights).
There are no regulations concerning surrogacy in Italy.
Employees who have adopted children are entitled to take a three-month period of maternity or paternity leave during the first three months that the child is in the family.
They are entitled to the same financial benefits as parents of natural children (see above, Maternity rights). They can also take parental leave, for the first three years that the child is in the family, for the same periods and with the same financial benefits as parents of natural children (see below, Parental rights).
Finally, the resignations and mutual termination agreements made by parents within the first three years of the child being adopted or taken on by the family must always be validated and confirmed by such mothers or fathers through a special procedure. Failure to follow the special procedure may make the resignation/mutual termination agreement ineffective (see above, Maternity rights).
After childbirth, in addition to the maternity and paternity rights above, male and female employees can take parental leave for up to six months each (with an overall limit of ten months together, or 11 months if the father takes a leave of longer than three months), until the child is eight years old. Single parents are entitled to ten months' leave. Employees receive an allowance amounting to 30% of their salary during parental leave, for an overall maximum of six months, until the child is three years old.
The law provides for several kinds of paid ordinary or extraordinary leave entitlements for subordinate employees who are:
Parents or relatives of disabled children.
Married to, or have relatives who are, adult dependants, whose disability is of a serious nature and has been assessed by a state medical panel.
Ordinary leave entitlements under Law No 104/1992 include three days' paid leave per month, up to two hours paid leave per day and an extension of the optional six months' parental leave until the child is aged three. During this last period, employees receive an allowance amounting to 30% of their salary. Law No 388/2000 entitles employees to request up to two years' extraordinary leave, during which the employee receives a monthly amount equal to the normal monthly salary up to a fixed threshold set up each year by the Ministry of Labour (which is equal to EUR322.15 for 2013).
Continuous periods of employment
Statutory rights created
Length of service can create a number of statutory benefits (for example, a right to increased severance pay (see Question 17, Severance payments). CBAs also give various benefits to employees, depending on their length of service, including:
Automatic salary increases.
Longer sick leave.
Longer notice periods.
Consequences of a transfer of employee
If individual employees are transferred to a new employer (either where a transfer of undertaking takes place or where contracts are transferred with the employees' consent) their employment contracts remain unaltered and they are deemed to retain their full period of continuous service.
Fixed term, part-time and agency workers
Fixed-term and permanent workers must be treated equally.
The general rule for entering into fixed term contracts under Italian law is that an express specific motivation must be set out in the contract. A recent reform provided for an exception to this rule, allowing employers to enter into a fixed term contract for a maximum period of 12 months, without that express motivation. This new rule only applies if it is the first contract between the parties and also applies to temporary staff hired through agencies.
Generally, a fixed term employment contract can only last up to 36 months. If the employee is hired as an executive for a fixed term period, the contract cannot last more than five years. Failure to comply with these maximum durations can entitle the employee to be deemed to be a permanent employee. The same remedy applies if the express motivation is not specific enough, or if there is no express motivation at all. This is also the case where the employee continues working beyond the final term set up in the contract or in the case of non-compliance with the minimum period between successive fixed-term contracts, which has been reduced to ten days (if the previous contract was under six months) or 20 days (if the previous contract was longer than six months), according to a recent law. In all cases of re-qualification of a fixed-term contract into an open-ended (permanent) one, the Judge also awards compensation for damages ranging between 2.5 to 12 months' salary, calculated with reference to the latest monthly salary. A fixed-term contract can be terminated only for just cause. If a just cause does not exist the employee is entitled to damages that are generally quantified by the Judge according to the loss of salary between the early termination and the expiry date agreed in the contract.
Agency workers can be hired either on a fixed-term or, for certain activities, on a permanent basis (this is called "staff-leasing"). The recent reform (Law No 92/2012) introduced the possibility of hiring agency workers as apprentices and also provided an exception to the "express motivation rule" (see above, Temporary workers), allowing labour agencies to enter into a fixed-term contract with the worker and with the respective user undertaking for a period of 12 months, without express motivation. During the assignment period at the user undertaking, agency workers are entitled to basic working and occupational conditions, which globally must not be lower than those granted to the user's employees of the same level and with the same professional duties. A fine will be incurred for any violation of this obligation (Article 23, Legislative Decree No 276/2003, as amended by Legislative Decree No 24, 2 March 2012). Failure to comply with the provisions applicable to fixed-term or open-ended labour-hire arrangements may entitle agency workers to be considered permanent employees of the user company.
Part-time workers are entitled to be treated on an equal footing with workers who carry out the same duties but are employed on a full-time basis, and not to be discriminated against on the grounds of their part-time status. Equal treatment entails, amongst other things, that they must receive the same hourly-rate salary and that the duration of their leave should be the same (though this can be pro-rated according to the actual working hours).
Self-employed workers can claim that their employment relationship has been misclassified and that they should be considered subordinate employees. Reclassification relies on a series of indicators, including:
The hierarchical power exercised by the employer.
Stringent working time.
Furthermore, subordination is considered legally proved if two of the following circumstances occur:
The relationship lasts for more than eight months throughout two consecutive years.
The remuneration deriving from the relationship is more than 80% of the annual remuneration received by the worker throughout two consecutive years.
The worker is assigned their own permanent desk at the principal's office.
Employees' data protection rights
The data protection rights enjoyed by employees can be found in the Personal Data Protection Code (Legislative Decree No. 196/2003) (Data Protection Code), which applies to all organisations and individuals.
The Data Protection Code brings together all the various laws, Codes and Regulations relating to data protection since 1996. There are three key principles behind the Data Protection Code, which are outlined in section 2:
The Data Protection Code is divided into three parts:
Part one sets out the general data protection principles that apply to all organisations.
Part two of the Data Protection Code provides additional measures that must be undertaken by organisations in certain areas, for example, healthcare, telecommunications, banking and finance or human resources.
Part three contains provisions on sanctions and remedies.
Part two of the Data Protection Code has been further developed through the introduction of sectoral Codes of Practice.
Employers' data protection obligations
The Data Protection Code ensures the fair and lawful processing of individuals' personal data, in line with principles of fair processing, by respecting data subjects' rights, fundamental freedoms and dignity, particularly relating to:
The right to personal data protection.
The employer can only collect an employee's personal data if all of the following apply:
The data is relevant in evaluating the employee's fitness for the position.
Prior information on the purposes of the processing is given to the data subject.
The data subject provides their consent to the processing.
In the case of sensitive data, with the authorisation of the watchdog (Garante).
Discrimination and harassment
Protection from discrimination
Employees are protected against direct and indirect discrimination, during the course of their employment, on the grounds of:
National, social or ethnic origin.
Membership of a trade union.
Being HIV positive.
Direct discrimination occurs when a person is, has been or would be treated less favourably than another person in a comparable situation. Indirect discrimination occurs when an apparently neutral requirement, criterion, act, pact or general rule places a person at a particular disadvantage or in a less favourable position. However, indirect discrimination can be objectively justified if the measure has a legitimate aim and appropriate methods are used.
The legislation applies to both the public and private sector, particularly in relation to:
Access to the job market.
Employment and working conditions.
Access to any kind of professional association.
The activities of employees' and employers' unions.
Social security contributions.
Access to services, including accommodation.
In addition, it is unlawful to refuse to employ individuals or to dismiss them on the grounds that they are or are not members of a trade union, or because of their marital or family status, or pregnancy. Employees are also protected against discrimination and victimisation on these grounds during the course of their employment.
If discrimination is found to exist, the Employment Tribunal can require the employer to develop a plan to remove discriminatory practices, and publish that decision in a national newspaper. It can also order the employer to pay damages. There is no specific ceiling for damages, but the court will consider, when setting their level, whether the discrimination consists of retaliation against the employee or an unfair reaction to a previous case.
There are specific procedures in relation to:
Discriminatory collective economic treatment. The employees discriminated against (or their trade union) can request the court to order the employer to pay a sum into a special fund called the Pensions Adjustment Fund for a maximum of one year.
Discriminatory collective treatment on the grounds of sex. On request of the affected employees or their trade union, and after examining the facts and hearing the Equal Treatment Committee and the local trade union, the court can order the employer to draw up a plan to remove all kinds of discrimination and pay damages to the employees.
Anti-trade union behaviour. On the request of the affected trade union, the court can order the employer to immediately cease the anti-union practice. If an employer fails to obey, it can be liable to prosecution under the Criminal Code.
The qualifying period for claims depends on the type of claim and prescription varies from between five to ten years.
Protection from harassment
Harassment is defined as any unwanted conduct relating to any of the discriminatory grounds with the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment is specifically defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, with the purpose or effect of violating a person's dignity, in particular by creating an intimidating, hostile, degrading, humiliating or offensive environment.
A person's rejection of, or submission to, harassment or sexual harassment cannot be used as a basis for a decision affecting that person.
The court can impose the same orders and penalties as for discrimination (see above, Protection from discrimination).
A recent piece of legislation has introduced specific protection for employees of the Public Administration who file a claim before a court or report to their supervisor any unlawful conduct that they have come to be aware of during the employment relationship. The law expressly provides that these employees cannot be sanctioned, dismissed or discriminated against by their employer for these complaints. Discrimination law provides protection against discrimination when someone (including an individual who has suffered direct or indirect discrimination as well as any other person) is treated badly as a consequence of the action they took in order to achieve equal treatment (that is, victim protection).
Termination of employment
There are two ways in which the employer can terminate an employment contract:
Dismissal without notice for just cause, for example, where there is a serious breach of the employment contract (gross misconduct).
Ordinary dismissal with notice based on either a:
subjective reason (involving a breach of the employee's legal and contractual duties); or
objective reason (involving economic factors relating to production, the organisation of work, the proper functioning of the business and redundancy).
Specific rules apply to employees who are executives (dirigenti) (see Question 20). The relevant notice period is set out in the applicable CBA, based on the employee's length of service, position and level. The notice period required in the event of resignation is usually shorter than for dismissal. In the latter case, the employer can opt to make a payment in lieu of the notice period, on which social security contributions must be paid.
In all cases where an employment contract is terminated, even for just cause, the employer must pay the dismissed employee the following:
Severance pay. The employer must pay severance pay (trattamento di fine rapporto (TFR)) in all cases, even if there is a resignation or just cause for dismissal. The amount payable is equal to the sum of each annual salary divided by 13.5. These amounts are index-linked annually.
Pro rata supplementary monthly payments. The employer must pay these if it has done so during the employment contract. In these circumstances, the employer must pay the amount due up to the date on which the employment contract is terminated, including the pro rata sum accrued during the notice period.
Payment in lieu of holidays not taken. If dismissed employees have not used all their holiday allowance before the employment contract is terminated, they are entitled to a payment in lieu of unused holiday allowance.
Procedural requirements for dismissal
A dismissal must always be made in writing. If the dismissal is caused by an employee's failure to fulfil legal or contractual duties, a special procedure (disciplinary procedure) must be followed. Under this procedure, the employer must:
Promptly send the employee a letter describing the facts that would constitute a breach of the contract.
Wait for the employee's reply, which must be received within five days (or a longer period provided for in the applicable CBA).
Send the employee a letter of dismissal, explaining why the employer could not accept the employee's justifications.
In the letter of dismissal the employer must mention the reasons for the dismissal. The new law introduces a procedure for individual dismissals for economic reasons (redundancy), which employers with more than 15 employees must follow. In particular, this procedure provides that:
The intention to dismiss must be communicated in advance to the employee and to the local Labour Office.
The Labour Office has a seven-day period to call a meeting with the employer and employee in order to find an agreement for the planned dismissal.
If the meeting is not called by the Labour Office within seven days, the dismissal can be served.
If the meeting is called, the parties will try to reach an agreement (for a maximum period of 20 days). Where there is failure to reach an agreement, the dismissal can be served.
The above procedure does not apply to the dismissal of executives.
A specific procedure exists for collective redundancies (see Question 21).
Grounds for dismissal
There are three grounds for dismissal:
Justified objective reason (that is, redundancy for economic, productive or organisational reasons).
Justified subjective reason (that is, serious misconduct in breach of the employee's contractual obligations).
Just cause (that is, circumstances that prevent the continuation, even on a temporary basis, of the employment relationship).
Procedural requirements for dismissal are dealt with in Question 19.
Protection against dismissal
Unfair dismissal. Employees who have successfully passed the trial period can apply to the Employment Tribunal if they consider that they have been unfairly dismissed. The judge can apply the following remedies, depending on the company's size.
If it is a company with 60 or fewer employees, and 15 or fewer employees in the single work unit (for example, an office or subsidiary) or town where the dismissal is served, the employer must do either of the following (the choice rests with the employer):
Re-engage the employee (the employee returns to work with a new contract).
Pay damages of between 2.5 and six months' salary. (Damages can increase to ten months' salary for employees with ten years' service and 14 months' salary for employees with 20 years' service, provided that the whole company has at least 15 employees.)
If it is a company with 61 or more employees, or 16 or more employees in a single work unit or town, under the recent law the employer can be made to do one of the following:
Dismissal on discriminatory grounds. In the case of unlawful or void dismissals (for example, discriminatory dismissal, oral dismissal or dismissal during pregnancy), the remedy consists of reinstatement with payment of compensation for the lost salary from dismissal to reinstatement (this applies to all employees, including executives) with a minimum of five months' salary.
Dismissal without any written motivation or notified without following the legal procedure. If the dismissal is served without any written motivation or without following the disciplinary procedure or the procedure prescribed by law for a dismissal for objective reasons, the judge can award the employee compensation for the damage suffered of between a minimum of six months' salary, up to a maximum of 12 months' salary, unless the reason for the objective dismissal do not exist (in which case, the sanctions that follow will apply).
Dismissal based on the employee's breach of contract (subjective reasons such as a gross misconduct). When a dismissal is served for subjective reasons (after completion of a compulsory disciplinary procedure) and is declared unfair at trial, the possible consequences are:
if the dismissal is unfair because the facts it was based on did not happen, or were considered lesser breaches by the disciplinary codes applied to the employment relationship, the consequence is reinstatement with compensation capped at 12 months' salary (alternative income earned or potentially earned by the employee in the relevant time span is to be deducted from the amount awarded);
in any other case of unfair dismissal declared at trial, the dismissal remains in place (and termination of the employment relationship is confirmed), but compensation is awarded to the claimant (from 12 to 24 months' salary).
Dismissal for economic or reorganisation reasons (objective reasons, such as the suppression of job position). When dismissal is served for objective reasons (after completion of the new procedure above), and is declared unfair at trial, the possible consequences are:
if the dismissal is manifestly without merit or grounds (the facts at its basis are not true), the judge has the discretion to award either reinstatement and compensation (capped at 12 months' salary), or just compensation (from 12 to 24 months' salary);
in all other cases of unfair dismissal being declared at trial, the dismissal remains in place (and termination of the employment relationship is confirmed), but compensation is awarded to the claimant (from 12 to 24 months' salary).
Executives can be dismissed:
For just cause without notice. This must be a serious cause that cannot allow the contract to continue even on a provisional basis.
For no given reason, with notice. However, if a CBA applies to the employment contract with the executive, the employer must have reasons for the dismissal, which can be subjective (involving a breach of legal and contractual obligations) or objective (involving economic factors relating to production, the organisation of work, the proper running of the business and redundancy). If the reason is not fair or true, or there is a dismissal without any reason, the executive can be awarded a penalty, which must be paid in addition to the notice period. The CBA sets a minimum and maximum amount for this penalty (for example, for the manufacturing sector it ranges between a minimum equal to the notice period plus two months and a maximum of 20 months' salary).
Discriminatory dismissal. Discriminatory dismissals are unlawful, regardless of the company's current size or the employee's category (see above, Protection against dismissal: Unfair dismissals).
Qualifying period regarding claims for unfair dismissal. The recent law has provided that claims against dismissal must be filed within 180 days from the date the employee first challenges the dismissal. The challenge to the dismissal must be made in writing within 60 days from notification of the dismissal itself.
If this deadline is missed, the right to file a claim before the Employment Tribunal will be lost.
The following categories of employees have special protection against dismissal:
Disabled employees. The dismissal of disabled employees for economic reasons or as part of a collective redundancy is not valid if the number of disabled employees in the workplace is lower than the law requires. If a disabled employee's contract is terminated, the employer must inform the Employment Office within ten days to substitute the dismissed employee with another disabled employee.
Employees entitled to maternity or paternity rights. Employers cannot dismiss female employees during pregnancy and until the child is one year old, unless the dismissal is due to:
a just cause;
the employer's business closing down;
the expiry of a fixed-term contract; or
an unsatisfactory probationary period.
The same rule applies to a father who takes paternity leave instead of the mother.
Female employees who have been married for one year or less. Employers cannot dismiss female employees from the date of request for publication of the marriage until one year after the date of the marriage. Any dismissal in this period is null and void unless the employer demonstrates that the reason for the dismissal is due to:
a just cause;
the employer's business closing down; or
the expiry of a fixed-term contract.
Representatives of the works council. The dismissal of a representative of a works council on union grounds is unlawful.
Definition of redundancy/layoff
Dismissal for objective reasons (individual redundancy) is determined by reasons related to the business activity,, the organisation of work and to its regular functioning. Relying on the case law, a genuine redundancy must derive from a real need for the employer to make a certain position redundant in order to deal with economic, organisational and productive reasons. Individual redundancies are subject to the rules outlined in Question 19 and Question 20.
The individual and collective redundancy pay is equal to severance pay on dismissal (see Question 17, Severance payments). In addition, starting from 1 January 2013, a new unemployment benefit (Assicurazione sociale per l'impiego (ASPI), is provided, under certain circumstances, to people who have been dismissed. The benefit will be approximately equal to a maximum of EUR1,150 per month, paid for a maximum period of 12 months. By 2016 the maximum duration will increase to up to 18 months for those aged over 55. The employers will contribute to its funding.
In the case of a collective redundancy which occurs before 2017, employers in certain activity sectors must also contribute to the National Social Security Body (Istituto Nazionale Previdenza Sociale (INPS)) in order to fund a special unemployment indemnity (indennità di mobilità), which is payable to the employee in lieu of ASPI.
A collective redundancy occurs when a company employing more than 15 persons, as a result of business reorganisation, intends to make at least five dismissals within 120 days, in either:
Each work unit.
A number of work units within the same province.
If an employer intends to carry out collective redundancies, it must inform the employees' representatives in writing (either the company's works council or any related trade unions) and provide the following information:
The reasons for making the redundancies.
The technical, organisational or economic reasons why it is impossible to avoid, wholly or in part, making the redundancies.
The numbers and job descriptions of the redundant employees.
The timetable for redundancies.
Any measures taken regarding the redundant employees.
The proposed method of calculating any redundancy payments, other than those conferred by law or CBAs.
The redundancy procedure is then divided into two phases:
Phase I. Negotiations must begin within seven days of receiving the written information (if requested by the employees' representatives). This consultation phase must be completed within 45 days (23 days if the number of employees involved is fewer than ten). The company must provide the Regional and Provincial Employment Offices with written notice of the results of the negotiations, giving reasons if there is a negative outcome.
Phase II. If the parties do not reach an agreement, the Employment Office must summon them for final negotiations, lasting up to 30 days (15 days if the number of employees is fewer than ten).
Under the recent law, any errors made in the first written notice sent to the unions to initiate the information and consultation procedure can be overcome through an agreement reached during the procedure.
If the time limit for final negotiations has expired and an agreement has still not been reached, the company can make the redundancies. Redundancies must comply with the employees' notice period, which vary depending on their job position and length of service. Within seven days from the dismissals the Employment Office must be given a written list of employees who are made redundant. The list must contain the following information:
The employees' names and address.
The employees' job description and position in the company.
The employees' ages and family situation.
A detailed description of the selection criteria applied.
The recent law introduced a new sanction system, which is dependent on the type of breach affecting the redundancy procedure and/or the dismissal (for example, where the dismissal is not put in writing, or there is a procedural breach or a breach of selection criteria). The sanctions for employers range from reinstatement of the employee to the payment of compensation (between 12 to 24 months' salary).
Employee representation and consultation
Employees are not entitled to management representation.
Legislative Decree No. 25 of 6 February 2007, which implemented Directive 2002/14/EC on informing and consulting employees, has introduced a general framework for this issue. This provides that CBAs must define the scope, time frame, affected parties and conditions regarding the information and consultation process. The information and consultation obligations concern:
The company's general situation.
The business it is engaged in.
Decisions that may affect how work is organised.
These rules apply to companies with at least 50 employees.
If the company carries out collective redundancies or transfers of undertakings, employees are entitled to be consulted through their representatives. Consultation is not required for transfers by share takeover. CBAs usually provide further specific provisions.
If an employer fails to comply with its consultation duties for collective redundancies, or transfers of undertakings or other consultation obligations provided in CBAs, the union can bring legal action for anti-union behaviour. If the court finds that the employer did not comply (for example, if changes to the company's organisation are adopted without consultation), it can order the employer to stop its unlawful behaviour and consult with the unions.
Individual employees cannot take action to prevent proposals going ahead. The employees' representatives can apply to the court for an order to stop the unlawful behaviour and consult with the unions (see above, Remedies).
Consequences of a business transfer
Automatic transfer of employees
If a transfer of undertaking is carried out, employees are automatically transferred with the business. CBAs can allow executives to resign within six months of the date on which they receive formal notice of the transfer, receiving an extra payment equal to the payment in lieu of notice.
Additionally, if after a transfer of undertaking the terms and conditions of an employment contract have been substantially modified, within three months following the transfer of undertaking the employee can resign and obtain the payment of the indemnity in lieu of notice.
Protection against dismissal
Dismissals made as a direct result of transfers of undertakings are invalid.
Harmonisation of employment terms
The terms of the individual employment contract can be altered, but only with the consent of every employee who has been transferred. In addition, the new employer must apply all terms and conditions of any collective agreements applicable to the transferred employee until their expiry date, unless they are replaced by either:
The new employer's CBA, if applicable.
A specific company CBA that deals with the changeover of agreements.
Employer and parent company liability
An employer can be liable for the acts of its employees?
A parent company can be liable for the acts of a subsidiary company's employees?
Employee rights on insolvency
Employees' rights related to severance payments as well as damages for failure of the employer to pay social security contributions and compensation awarded in the case of unfair dismissal are considered employees' privileged credits. The same applies to the remuneration of self-employed workers.
State guarantee fund
There are state funds managed by the National Social Security Institute (namely, Fondo di Tesoreria and Fondo di Garanzia) providing a guarantee mainly for the mandatory severance pay (see Question 19) and the additional private pension contributions that insolvent employers failed to pay.
Health and safety obligations
The employer's main obligations are to:
Evaluate health and safety risks in the workplace.
Identify the steps that must be taken to comply with safety requirements.
Eliminate or reduce the risks to a minimum.
The employer must put in place various measures, including ones relating to first aid training, evacuation of employees and safety devices. Particular focus should be placed on safety devices, which must be used and maintained in compliance with the maker's instructions.
The employer's premises must be regularly maintained, including plant machinery and systems.
Employees or their representatives must be involved in training and consultation regarding health and safety issues in the workplace. The employer must appoint one or more competent persons to assist it in implementing preventative and protective safety measures. In addition, the employer has a duty to ensure that its employees are provided with appropriate health cover. Breach of the employer's health and safety duties carries both criminal and civil penalties. Under Act No. 81/2008, specific health and security obligations came into force regarding contracts for services, including the duty to:
Check the suitability of the contractors in relation to the work to be performed.
Implement preventative and protective measures regarding the related risks of the job to be performed under the contract.
Taxation of employment income
Foreign nationals working in your jurisdiction?
Nationals of your jurisdiction working abroad?
Resident individuals are liable to pay income tax on income produced or earned during the tax period anywhere in the world (the worldwide taxation principle). Non-resident individuals are only taxed on the income produced or earned in Italy. The Italian tax year is the calendar year. Individuals are deemed to be resident in Italy if, for more than 183 days in the tax year, they either:
Are enrolled at the public residency register of the town council where they reside.
Have their economic and personal interests in Italy.
Have their habitual abode in Italy.
Nationals working abroad
The same principles apply as for foreign nationals (see above, Foreign nationals).
Rate of taxation on employment income
The rate of taxation on personal income is currently:
23% for income up to EUR15,000.
27% for income over EUR15,000 and up to EUR28,000.
38% for income over EUR28,000 and up to EUR55,000.
41% for income over EUR55,000 and up to EUR75,000.
43% for income over EUR75,000.
Social security contributions
Both employers and employees must pay social security contributions. Contributions are paid on a monthly basis and the rate depends on the type of business that the company carries out and the employees' position within the company (that is, whether they are blue-collar employees, white-collar employees, managers or executives).
Social security contributions are payable on employees' gross annual earnings. The basic rate for employers' contributions is currently 23.81%, while the current rate for employees is 9.19%, with a ceiling of EUR99,034 for 2013 for any employees who started work after 31 December 1995.
Intellectual property (IP)
IP rights can be split into three categories, depending on the kind of invention:
Service invention. This is an invention, made by employees in the course of their employment, where the activity that led to the invention was part of the scope of the employment contract and the employees were paid for performing that activity. In this case, the rights arising from the economic exploitation of the invention automatically belong to the employer. Employees are not entitled to specific remuneration for the invention, since their salary already covers this.
Company invention. This is an invention, made by employees in the course of their employment, where the employee was not paid for performing the activity that led to the invention. In this case, the rights arising from the economic exploitation of the invention belong to the employer, but the employee has the right to be recognised as the actual author of the invention. The employee also has the right to receive proper remuneration for the invention (called a "fair reward"). The amount of remuneration is decided according to the importance of the invention.
Occasional invention. This is an invention, made by employees in the course of employment using their own resources, but within the business sector in which the company operates. In this case, the economic as well as the creative rights belong to the employee. However, the employer may have a right of pre-emption for either the exclusive or non-exclusive use of the invention, or for the acquisition of the patent.
The above rules only apply to inventions that can be the subject of a copyright. No particular rules apply to other IP rights.
Restraint of trade
Restriction of activities
Employees have a duty of loyalty to their employer during the course of employment. During employment they cannot engage in business that competes with the employer, either on their own account or on behalf of third parties. In addition, employees must not divulge information relating to their employer's business or use it in a manner that is detrimental to the employer's activities. Failure to observe these duties can result in disciplinary penalties, including dismissal, depending on the seriousness of the breach involved.
Post-employment restrictive covenants
Any agreement purporting to restrict employees' activities in competition with the previous employer after their contract has been terminated is valid only if the following conditions are met:
It is in writing.
It sets out a fair remuneration for the employee.
It is confined to a specific geographical area.
It is confined to a specific activity.
It does not exceed a term of five years for executives or three years in other cases.
If a longer term is agreed, it is reduced to the above time limit. The remuneration should be calculated by taking into account the duration of the covenant, the area covered and the type of business that is prohibited.
Proposals for reform
The Italian Parliament has approved Law No. 99, 9 August 2013, the scope of which is to tackle youth unemployment. The following are the main changes introduced by the new Law:
Incentives, by means of tax cuts, for hiring employees who:
are between 18 and 29 years of age;
do not have a high school diploma;
have been without a regular job over the last six months;
live alone or are supporting at least one other person.
The employee must be hired by the employer for a maximum period of:
18 months for new hires;
12 months for employees whose short-term or freelance contracts become permanent full-time.
When hiring the unemployed who are recipients of state unemployment benefits, 50% of the remaining benefit is assigned to the employer.
The minimum period between successive fixed-term contracts has been brought back to ten days (if the previous contract was for less than six months) and 20 days (if the previous contract was for longer than six months).
The fixed-term contract without specified reason can be extended up to the maximum period of 12 months in total.
Project-based contracts cannot entail the performance of merely operational and repetitive tasks.
The legal procedure provided under the law in the case of dismissal for objective reasons is not to be applied in the case of a dismissal where the employee has exceeded the maximum job position retention period granted for periods of sickness.
The provision that prohibited any extension of a fixed-term contract without motivation has been repealed.
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Ministerial regulation for foreign nationals applying for permission to stay in Italy
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Franco Toffoletto, Chairman
Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)
Qualified. Italy, 1982
Areas of practice. Employment law; industrial relations; agency law.
- International and domestic advice to major Italian and foreign multinational companies on employment law.
- Founding partner of Ius Laboris (Global Alliance of Human Resources Lawyers), of which he was the Chairman until 2012.
- Original partner of the European Employment Lawyers Association (EELA), member of its Board of Directors since its establishment, and its Chairman from 2003 to 2007.
- Member of the International Bar Association (IBA).
Emanuela Nespoli, Partner
Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)
Qualified. Italy, 1996
Areas of practice. Employment law; industrial relations; agency law.
- International and domestic advice to major Italian and foreign multinational companies on employment law.
- Author of numerous articles in the field of employment law, including contributing to the Tax and Regulations section of the II Sole 24 Ore newspaper.
- Member of the International Bar Association (IBA).
Ornella Patané, Senior Associate
Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)
Qualified. Italy, 2003
Areas of practice. Employment law; industrial relations; agency law.