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 global guide to employment and employee benefits law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employment-guide.

Franco Toffoletto, Emanuela Nespoli and Ornella Patané, Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)
Contents

Scope of employment regulation

1. Do the main laws that regulate the employment relationship apply to:
  • 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.

 

Employment status

2. Does the law distinguish between different categories of worker? If so, what are the requirements to fall into each category, the material differences in entitlement to statutory employment rights and are there any maximum time periods for which each category of worker can be engaged?

Categories of worker

Subordinate employees. Persons 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 (Article 2094, Italian Civil Code).

Self-employed workers. Workers 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 (Article 2222, Italian Civil Code).

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, subordinate employees are entitled to all statutory employment rights (for example, holiday, sick leave, maternity leave, severance pay (trattamento di fine rapporto (TFR)) and so on). Additionally, subordinate employees enjoy strong protection in the case of unfair dismissal, ranging from the payment of compensation to reinstatement (see Question 20).

Self-employed workers enjoy almost none of the rights granted to subordinate employees. However, with effect from 1 January 2016, the rules governing subordinate employment contracts will apply to self-employed workers who provide services that are performed in a manner that is exclusively personal and continuous, and which method of execution is organised by the employer with regards to timing and place of work. However, certain self-employed contracts that are based on co-ordination and continuity will not be subject to the rules governing subordinate employment contracts in the following cases (among others):

  • The worker is a practitioner registered on a professional register, such as a lawyer, accountant or architect (but only when carrying out professional activities).

  • The worker is a member of the board of directors of a company (but only when carrying out this directorship).

  • The worker works for an amateur sports association.

  • In other cases provided for by any applicable national collective bargaining agreement.

Time periods

The term of an employment contract must be set out in writing. The maximum duration of a fixed-term employment contract is 36 months (including temporary agency work contracts). If the initial term is less than three years, the fixed-term contract can be extended up to a maximum of five times, within the maximum period of 36 months, with the employee's consent, and provided that the employee continues to carry out the same tasks.

 

Recruitment

3. Are any grants or incentives available for employing people? Does any information/paperwork need to be filed with the authorities when employing people?

Grants or incentives

Until 31 December 2015, companies that hire employees under an open-ended employment contract are exempted from the obligation to pay social security contributions up to a maximum of EUR8,060 per year, for a period of three years. This exemption only applies if the employee did not work under an open-ended employment contract in the six-month period before being hired.

In addition, there are other incentives (for example, reduced social security contributions or incentives), which are available to companies that employ certain categories of people, including:

  • Young people, generally between 15 and 29 years of age, under specific types 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, those subject to redundancy procedures or affected by disability).

Filings

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).

 

Background checks

4. Are there any restrictions or prohibitions on carrying out background checks in relation to applicants?

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 aptitude 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

5. What prior approvals do foreign nationals require to work in your country? What information/paperwork needs to be kept or filed with the authorities when they start work?

Visa

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.

Permits

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 prison for a period between three and five years, 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:

  • More than three employees are involved.

  • The employees are under 18 years of age.

  • The employees have been exploited.

 

Restrictions on managers and directors

6. Are there any restrictions on who can be a manager or company director?

Age restrictions

There are no age restrictions on managers or company directors.

Nationality restrictions

There are no nationality restrictions on managers or company directors.

Other

A person cannot be appointed as a company director if he does not have legal capacity. Additionally, there are certain categories of individuals (such as members of Parliament, civil servants and so on) who cannot perform activities as company directors while they are in these positions.

 

Regulation of the employment relationship

7. How is the employment relationship governed and regulated?

Written employment contract

An oral employment contract is valid and effective. There is no specific requirement for a written employment contract nor 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.

  • Salary.

  • Duration of paid holidays.

  • Working hours.

  • Length of the notice period when terminating the contract.

Implied terms

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 agreements

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. Generally, 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.

 
8. What are the main points to consider if an employer wants to unilaterally change the terms and conditions of employment?

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 (as amended in June 2015) which permit an employer to unilaterally change the employee's duties and place of work if the employer wishes to do so.

With regard to changing an employee's duties, it is possible to assign the employee to a lower job, subject to the following limitations:

  • The employer can unilaterally assign an employee to different duties as long as such duties belong to the same job-classification level and statutory job category (that is, executives, middle-managers, white-collar employees and blue-collar employees) as his or her previous job-classification level, and the employee is entitled to the same salary.

  • The employer can unilaterally assign an employee to different duties of a lower job-classification level, but in the same statutory job category, only if there is an objective reason for doing so (for example, a change in the company's organisational structure). More circumstances can be provided for by under collective bargaining agreements (CBAs). To be valid, the change must be executed in writing and the employee must be entitled to the same salary and job-classification level.

  • The employer can enter into individual agreements with its employees to change their duties (without limitation), job-classification levels, statutory job categories and salaries, on the condition that these agreements are signed before a conciliation committee (for example, at the local employment office, trade union offices, court or certification board offices) and that they are signed in the employee's interest so as to keep his/her job, to acquire a different skill or to improve his/her living conditions.

In addition, the employer can unilaterally change the place of work, provided that there are organisational, technical or production reasons to do so. Additional restrictions can be provided for under the applicable CBAs.

 

Minimum wage

9. Is there a national (or regional) minimum wage?

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 collective bargaining agreements for the relevant sectors, even if the company does not apply them.

 

Restrictions on working time

10. Are there restrictions on working hours? Can an employee opt out on either an individual or collective basis?

Working hours

There is no cap on daily working hours as such. However, employees are entitled to a daily rest period of 11 consecutive hours every 24 hours. This effectively restricts how many hours a worker can work in a day.

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. Collective bargaining agreements (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).

CBAs regulate overtime. Where no CBA applies, overtime must be agreed between the parties, although overtime cannot exceed 250 hours per year.

Even without prior written agreement, overtime can be requested for specific reasons set out in the law and CBAs, such as:

  • Exceptional production requirements.

  • Circumstances beyond the company's control.

  • Particular events (for example, exhibitions or demonstrations).

Overtime must be compensated with increased salary, although a CBA can state that the worker must be allowed to take an equivalent period of compensatory rest. There is a limit on the amount of night work an employee can perform. A night worker's normal hours of work must not exceed an average of eight hours in every 24 hours. However, this limit can be adjusted by a CBA. Night work must be carried out between midnight and 5am. A night worker is a person who works at least three hours during this period. There are different limits for young workers. In certain exceptional cases, where young people are permitted to work, different working hour limits apply. A worker under 16 years old must not work more than seven hours a day or 35 hours a week. A worker between 16 and 18 years old must not work more than eight hours a day or 40 hours a week.

The restrictions on working hours do not apply to employees whose duration of work cannot be measured, pre-determined or determined by the employees themselves, nor to:

  • Executives, managers and employees who have any form of independent decision-making powers within the organisation's structure.

  • Employees working from home.

  • Teleworkers (that is, employees not working on the employer's premises and using the employer's IT equipment such as a computer or other electronic devices).

Rest breaks

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.

Workers are entitled to "adequate" rest breaks where the worker's health and safety is at risk on account of the work pattern, for example:

  • Repetitive work.

  • Shift work.

  • Particular kinds of work (for example, in the transport sector).

Shift workers

Shift work is regulated by the relevant CBA.

 

Holiday entitlement

11. Is there a minimum paid holiday entitlement?

Minimum holiday entitlement

All employees are entitled to a minimum of four weeks' paid annual holiday. Collective bargaining agreements (CBAs) and individual contracts can provide for a longer period of holiday entitlement. Annual leave cannot be replaced by a payment in lieu, except where the employment contract is terminated.

There is no statutory unpaid holiday entitlement. However, a CBA can provide for unpaid leaves of absence.

According to a reform that entered into force on 24 September 2015, employees can transfer their accrued annual hourly leave or holiday entitlements for free to employees of the same company in order to allow them to look after their minor children who, due to their particular health conditions, need continuous treatments. The conditions and manner of transferring annual hourly leave and holiday entitlements will be set out in the applicable CBAs.

Public holidays

There are 12 public holidays, which are not included in the minimum holiday entitlement.

 

Illness and injury of employees

12. What rights do employees have to time off in the case of illness or injury? Are they entitled to sick pay during this time off? Who pays the sick pay and, if the employer, can it recover any of the cost from the government?

Entitlement to time off

Collective bargaining agreements (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/her job.

Entitlement to paid time off

In the case of illness or injury, CBAs or individual contracts generally provide for a period of paid time off, during which the employee is entitled to keep his job and to receive their salary in the proportion and for the period set out in any applicable CBA or the individual employment contract. 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.

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

13. What are the statutory rights of employees who are:
  • Parents (including maternity, paternity, surrogacy, adoption and parental rights, where applicable)?

  • Carers (including those of disabled children and adult dependants)?

Maternity rights

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 an authorisation from the Employment Office. However, the employer's consent is not needed.

During the entire pregnancy, and for a period after childbirth, the employee must not be allocated tasks that may 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 after 180 days from 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 20).

Additionally, the resignations and mutual termination agreements entered into with mothers during pregnancy or with parents of 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 renders the resignation/mutual termination agreement ineffective.

Paternity rights

If the mother does not take maternity leave (due to death, infirmity or the father having exclusive custody), the father is entitled to the entire or residual period of maternity leave. 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).

Additionally, fathers must take one day, and possibly another two days, of paid paternity leave within five months of the child being born.

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).

Surrogacy rights

There are no regulations concerning surrogacy in Italy.

Adoption rights

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).

Additionally, 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 render the resignation/mutual termination agreement ineffective (see above, Maternity rights).

Parental 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 not less than three months), until the child is 12 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 six years old. The parental leave can be enjoyed on an hourly or daily basis.

The employee can request (only once) that his or her full-time contract be converted into a part-time contract in lieu of parental leave, reducing the working hours by up to 50%. The employer must convert the contract within 15 days of the request.

Carers' rights

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 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. Additionally, employees are entitled 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 gross annual threshold set up each year by the Ministry of Labour (which is equal to EUR47,445.82 for 2015).

 

Continuous periods of employment

14. Does a period of continuous employment create any statutory rights for employees? If an employee is transferred to a new entity, does that employee retain their period of continuous employment? If so, on what type of transfer?

Statutory rights created

Length of service can create a number of statutory benefits (for example, a right to increased severance pay (see Question 19, Severance payments). Collective bargaining agreements 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

15. To what extent are temporary and agency workers entitled to the same rights and benefits as permanent employees? To what extent are part-time workers entitled to the same rights and benefits as full-time workers?

Temporary workers

Fixed-term and permanent workers must be treated equally.

Under a recent reform, a fixed-term employment contract can be entered into by the parties without any specific justification for the fixed-term duration, up until a maximum period of 36 months, including all possible extensions. This new rule also applies to temporary staff hired through agencies (see below, Agency workers).

In the absence of specific provisions in collective bargaining agreements (CBAs), the maximum number of employees on fixed-term contracts must not exceed 20% of the total number of permanent employees in force as of 1 January of the year of hiring. If the contract starts during the year, the percentage is calculated considering the number of permanent employees at the time of the hiring. There are some exceptions to this rule such as, for example, fixed-term contracts granted by an innovative start-up for work relating or instrumental to its corporate purpose, for a maximum period of four years from the start-up's formation.

CBAs can provide for different limits on the proportion of fixed-term contracts allowed with regard to the total number of permanent employees. If the maximum number of fixed-term contracts is not complied with, the contracts that violate the limit will not be converted into permanent contracts, but an administrative fine for each fixed-term employee employed in violation of the limit will be imposed, as follows:

  • 20% of the remuneration, for each month or fraction of a month exceeding 15 days of the duration of employment, if the number of workers employed in violation of the percentage limit is not more than one.

  • 50% of the remuneration, for each month or fraction of a month exceeding 15 days of the duration of employment, if the number of workers employed in violation of the percentage limit is more than one.

Fixed-term contract are prohibited in the following cases:

  • To replace employees on strike.

  • Where, in the last six months, there was a collective dismissal affecting employees assigned to the same tasks, unless:

    • the hiring takes place to temporarily replace an absent employee;

    • the employee to be hired is registered on the unemployment list; or

    • the initial term of the fixed-term contract does not exceed three months.

  • In organisations where employment contracts have been suspended, or working time reduced, with a right to redundancy pay for employees whose tasks are set out in the fixed-term employment contract.

  • Where the employer fails to comply with health and safety regulations.

A fixed-term employment contract can last up to five years for an executive. However, the executive can withdraw from it after the first three years, by giving proper notice. Executives are expressly excluded from the application of the law concerning fixed-term contracts.

A fixed-term contract can only be terminated for just cause. If a just cause does not exist the employee is entitled to damages. Damages are generally quantified by a judge according to the loss of salary between the early termination date and the contractually agreed expiry date.

Agency workers

Agency work is permitted either for a fixed period of time, or for an indefinite period of time. In the absence of specific provisions in CBAs, the maximum number of indefinite agency work employment contracts must not exceed 20% of the total number of permanent employees in force as of 1 January of the year in which the contract is entered into. If the contract starts during the year, the percentage is calculated considering the number of permanent employees in force at the time of signing the open-ended agency work employment contract. The maximum number of fixed-term agency work employment contracts can be set by CBAs.

Agency work is prohibited in the following circumstances:

  • To replace employees on strike.

  • Where, in the last six months, there has been a collective dismissal affecting employees assigned to the same tasks provided for in the agency employment contract (unless the agency workers are used to temporarily replace an absent employee or where the initial term of the fixed-term agency contract does not exceed three months).

  • In organisations where employment contracts have been suspended, or working times reduced, with a right to redundancy pay for employees whose tasks are set out in the agency employment contract.

  • Where the employment agency fails to comply with health and safety regulations.

The agency contract must be in writing and must contain certain information prescribed by law, including:

  • Details of the agency's authorisation granted by the Ministry of Employment.

  • The reasons for entering into this type of contract.

  • The number of individuals to be supplied, their duties, position, place of work, working hours, remuneration, and potential risks to which they could be exposed in carrying out the job.

An agency contract that is not in writing will be void, and the agency workers will be legally considered as permanent staff.

Under the CBA applicable to agencies, the initial term can be extended six times with the employee's consent.

As agency workers are employees of the agency during their employment, they must be paid directly by the agency as their sole employer. However, the user company is jointly liable with the agency if the agency fails to pay them. Joint liability applies to the payment of social security and insurance charges, as well as salary. Agency workers are subject to the directive and organisational power of the user organisation. However, any disciplinary procedure must be managed by the agency.

The agency is responsible for compliance with mandatory information obligations with regard to health and safety legislation in respect of agency workers, unless the agency contract provides that the user organisation is responsible.

If the supply of workers is unlawful, agency workers can file proceedings claiming the existence of an employment relationship directly with the user organisation from the start of the agency contract. This means that, in the case of a successful claim, an agency worker may become a permanent member of staff of the user organisation, with all the relevant rights and benefits. In these circumstances, administrative fines may also apply.

Part-time workers

A part-time employee is an employee who works for less than 40 hours per week, with pay and rights corresponding to the time worked. However, a part-time employee must not be discriminated against or receive less favourable treatment than an equivalent, full-time employee.

The part-time contract must specify the duration of the work and the distribution of working time.

In compliance with the provisions of the applicable CBA, an employer can ask a part-time employee to carry out additional work during the hours provided for by the parties in the employment contract, within the limits of normal working hours. If the applicable CBA does not regulate additional work, the employer can require the worker to carry out additional work up to a maximum cap of 25% of the agreed weekly working hours. In such a case, the employee can refuse the performance of additional work if his/her refusal is justified by proven work-related needs, or reasons relating to health, family or vocational training. Additional work is compensated by an additional 15% of the total hourly pay.

If the applicable CBA does not contain any provision, the employer and the employee can enter into an agreement (that must be certified by a special committee), providing for the employer's power to ask the employee to work different working hours or increase the working time in respect of the part-time hours provided for in the employment contract. To exercise this power, the employer must inform the employee by giving at least two working days' notice, unless otherwise agreed between the parties. The employee has the right to an additional compensation for this change, as provided for under the applicable CBA. An employee's refusal to agree to different/increased working hours does not constitute a justified reason for dismissal.

A full-time employee's refusal to agree to a part-time contract, or vice versa, does not constitute a justified reason for dismissal. However, the employer and the employee can agree in writing to convert a full-time contract into a part-time contract.

If a part-time employee is recruited, the employer must promptly notify full-time employees who work at the site and consider any request to convert full-time contracts to part-time contracts. The employer has no obligation to agree to a request for a part-time contract.

An employee whose employment contract is converted from full-time to part-time is entitled to be given priority with regard to the recruitment of workers with a full-time contract for the performance of the same tasks or duties, at the same job-classification level and category.

Self-employed workers

From 1 January 2016, employers that enter into a permanent employment contract with individuals who have a self-employment contract with that same employer, are entitled to the cancellation of the tax, social security contribution and administrative violations committed in relation to the misclassification of the working relationship, except for any violations that have been ascertained by a Ministry of Labour inspector before the hiring. This cancellation is only available if both:

  • The employee signs (before a conciliation committee) a settlement agreement with waivers relating to the previous self-employment relationship.

  • In the 12 months following the hiring, the employer does not dismiss the employee (unless for just cause or for subjective justified reasons).

 

Data protection

16. Are there any requirements protecting employee privacy or personal data? If so, what are an employer's obligations?

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:

  • Simplification.

  • Harmonisation.

  • Effectiveness.

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 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:

  • Confidentiality.

  • Personal identity.

  • 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

17. What protection do employees have from discrimination or harassment, and on what grounds?

Protection from discrimination

Employees are protected against direct and indirect discrimination, during the course of their employment, on the grounds of:

  • Sex.

  • Race.

  • Colour.

  • Religion.

  • Political opinion.

  • Sexual orientation.

  • National, social or ethnic origin.

  • Membership of a trade union.

  • Marital status.

  • Pregnancy.

  • Disability.

  • Age.

  • Personal opinion.

  • 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.

  • Health assistance.

  • Social services.

  • Education.

  • 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 the 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 the statutory limitation period varies from 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).

 

Whistleblowers

18. Do whistleblowers have any protection?

A 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. The 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

19. What rights do employees have when their employment contract is terminated?

Notice periods

There are two ways in which the employer can terminate an employment contract:

  • Dismissal without notice period 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 collective bargaining agreement (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.

Severance payments

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 cannot accept the employee's justifications.

In the letter of dismissal, the employer must mention the reasons for the dismissal. For individual dismissals for objective reasons (redundancy), there is a procedure that must be followed by employers that employ 61 or more employees in Italy, or 16 or more employees in a single work unit or town. 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). In the event of failure to reach an agreement, the dismissal can be served.

The above procedure for dismissals based on objective reasons does not apply to the dismissal of:

  • Executives.

  • Employees hired on or after 7 March 2015.

A specific procedure exists for collective redundancies (see Question 21).

 
20. What protection do employees have against dismissal? Are there any specific categories of protected employees?

Grounds for dismissal

There are three grounds for dismissal:

  • Justified objective reason (that is, redundancy for economic, production 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 probationary 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 and the date of hiring of the employees.

For employees hired before 7 March 2015, in the case of unfair dismissal within companies with 60 or fewer employees, and 15 or fewer employees in the single work unit (for example, an office or subsidiary) or the town in which the dismissal is served, the judge will order the employer to do one of the following (the choice rests with the employer):

  • Reinstate 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.)

In the case of unfair dismissal within companies with 61 or more employees, or 16 or more employees in a single work unit or town, the judge can order the employer to do one of the following:

  • Dismissal on discriminatory grounds. In the case of unlawful or void dismissals (for example, discriminatory dismissal, oral dismissal, dismissal during pregnancy or retaliatory dismissal), the remedy consists in the reinstatement of the employee with payment of compensation for the lost salary from the dismissal to date until reinstatement (this applies to all employees, including executives and employees working in smaller companies) with a minimum of five months' salary.

  • Dismissal without any written justification or served without following the legal procedure. If the dismissal is served without any written justification or without following the disciplinary procedure or the procedure prescribed by law for a dismissal for objective reasons (see Question 19), the judge can award the employee compensation for the damage suffered equal to between a minimum of six months' salary, up to a maximum of 12 months' salary, unless the reasons for the dismissal do not exist (in which case, the sanctions that follow will apply).

  • Dismissal based on the employee's breach of contract (justified subjective reasons or just cause such as a gross misconduct). When a dismissal is served for subjective reasons (after completion of the compulsory disciplinary procedure described in Question 19) and is declared unfair at trial, the possible consequences are:

    • if the dismissal is unfair because the facts on which it was based did not happen, or are considered to be less serious 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 elimination of the job position). When dismissal is served for objective reasons (after completion of the procedure described in Question 19), and is declared unfair at trial, the possible consequences are:

    • if the dismissal is manifestly without merit or grounds (that is, the facts at its basis are not true), the judge has the discretion to award the claimant 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).

For employees hired on or after 7 March 2015, in the case of unfair dismissal within companies with 60 or fewer employees, and 15 or fewer employees in the single work unit (for example, an office or subsidiary) or the town in which the dismissal is served, the judge will awards the unfairly dismissed employee compensation equal to one month's salary (not subject to social security contributions) for each year of service, with a minimum of two months' and a maximum of six months' salary.

In the case of unfair dismissal in companies with 61 or more employees, or 16 or more employees in a single work unit or town, the judge will order the employer 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 in reinstatement with the payment of compensation for the lost salary from the dismissal date until reinstatement (this applies to all employees, including executives and employees working in smaller companies) with a minimum of five months' salary.

  • Dismissal based on justified subjective reasons or just cause. When the dismissal is found to be unfair due to the inexistence of the grounds, the remedies are reinstatement and damages equal to the full salary and social security contributions due from the date of dismissal to the date of reinstatement (capped at 12 months' salary).

  • Dismissal on redundancy grounds, disciplinary grounds or just cause. The court will declare the employment contract terminated at the date of dismissal and order the employer to pay compensation, not subject to social security contributions, equal to two months' salary for each year of service, with a minimum of four months' and maximum of 24 months' salary.

  • Unfair dismissal due to a procedural error or issued without an explanation of its grounds. The court will declare the contract terminated at the date of dismissal and order the employer to pay compensation, not subject to social security contributions, equal to one month's salary for each year of service, with a minimum of two months' salary and a cap of 12 months' salary.

Executives can be dismissed:

  • For just cause without notice. There 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 the employee's 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. For example, the CBA for the manufacturing sector provides for a range between a minimum of two months' and a maximum of 18 to 24 months' salary depending on the length of service.

Discriminatory dismissal. Discriminatory dismissals are unlawful, regardless of the company's current size or the employee's category (see above, Dismissal on discriminatory grounds).

Qualifying period regarding claims for unfair dismissal. Claims against dismissal must be filed within 180 days of the date on which the employee first challenges the dismissal. The challenge to the dismissal must be made in writing within 60 days of the notification of the dismissal itself.

If this deadline is missed, the right to file a claim before the Employment Tribunal will be forfeited.

Protected employees

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.

  • Employees who have been married for one year or less. Employers cannot dismiss employees from the date of the 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.

    Recent case-law has extended this protection to male employees.

  • Representatives of the works council. The dismissal of a representative of a works council on union grounds is unlawful.

 

Redundancy/layoff

21. How are redundancies/layoffs defined, and what rules apply on redundancies/layoffs? Are there special rules relating to collective redundancies?

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 production reasons. Individual redundancies are subject to the rules outlined in Question 19 and Question 20.

Redundancy/layoff pay

The individual and collective redundancy pay is equal to severance pay on dismissal (see Question 19, Severance payments). In addition, starting from 1 January 2013, a new unemployment benefit (Nuova Assicurazione sociale per l'impiego (NASPI)), is provided, under certain circumstances, to people who have been dismissed. The benefit will be approximately equal to a maximum of EUR1,300 per month, paid for a number of weeks equal to half of the contributions weeks of the previous four years. The employers will contribute to its funding.

In the case of a collective redundancy that 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 NASPI.

Collective redundancies

A collective redundancy occurs when a company employing more than 15 persons, as a result of a business reorganisation, intends to make at least five dismissals (including executives) 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).

This information and consultation procedure also applies in the case of dismissal of executives (who were previously excluded from the application of 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 of 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 addresses.

  • The employees' job descriptions and positions in the company.

  • The employees' ages and family situations.

  • A detailed description of the selection criteria applied.

Different sanctions apply depending on the hiring date of the affected employees, as follows:

  • Employees hired before 7 March 2015. The following sanctions apply:

    • if the employer fails to comply with the information and/or consultation requirements, the dismissal will be declared unfair and, as a result, the employer will have to pay each affected employee a compensation payment equal to between 12 and 24 months' salary;

    • if the employer fails to comply with the selection criteria, the judge can order the employee to be reinstated in his/her job and be paid compensation of up to 12 months' salary.

  • Employees hired on or after 7 March 2015. The following sanctions apply:

    • if the employer fails to comply with the information and consultation requirements, or with the set selection criteria, the dismissal will be declared unfair and, as a result, the employer will have to pay each affected employee compensation (not subject to social security contributions) equal to two months' salary for each year of service, with a minimum of four and a maximum of 24 months' salary;

    • if the dismissed employees were not notified of the collective dismissal in writing, the court can order their reinstatement, as well as payment of compensation equal to the salary that would have been earned by the employees between the dismissal date and the date of reinstatement, with a minimum of five months' salary.

Regarding executives, if the employer fails to comply with the information and consultation requirements or with the set selection criteria, executives will be awarded compensation of between 12 and 24 months' salary, depending on the nature and seriousness of the breach. CBAs can provide for different amounts than those provided by law.

 

Employee representation and consultation

22. Are employees entitled to management representation (such as on the board of directors) or to be consulted about issues that affect them? Is employee consultation or consent required for major transactions (such as acquisitions, disposals or joint ventures)?

Management representation

Employees are not entitled to management representation.

Consultation

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.

  • The employees.

  • The decisions that may affect how work is organised.

These rules apply to companies with at least 50 employees.

Major transactions

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. Collective bargaining agreements usually provide further specific provisions.

 
23. What remedies are available if an employer fails to comply with its consultation duties? Can employees take action to prevent any proposals going ahead?

Remedies

If an employer fails to comply with its consultation duties for collective redundancies, or transfers of undertakings or other consultation obligations provided in collective bargaining agreements, 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.

Employee action

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

24. Is there any statutory protection of employees on a business transfer?

Automatic transfer of employees

If a transfer of undertaking is carried out, employees are automatically transferred with the business. Collective bargaining agreements (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

25. Are there any circumstances in which:
  • 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?

Employer liability

An employer is vicariously liable for the acts of employees in the course of their employment and for any damage caused to a third party.

Parent company liability

A parent company is not generally liable for the acts of its subsidiary company's employees.

 

Employer insolvency

26. What rights do employees have on the insolvency of their employer? Is there a state fund which guarantees repayment of certain employment debts?

Employee rights on insolvency

Employees' rights related to severance payments, as well as damages for the 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

27. What are an employer's obligations regarding the health and safety of its employees?

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 manufacturer'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. 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

28. What is the basis of taxation of employment income for:
  • Foreign nationals working in your jurisdiction?

  • Nationals of your jurisdiction working abroad?

Foreign nationals

Resident individuals are liable to pay income tax on income produced or earned during the tax period anywhere in the world (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).

 
29. What is the rate of taxation on employment income? Are any social security contributions or similar taxes levied on employers and/or employees?

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' positions 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 26.60%, while the current rate for employees is 9.19%, with a ceiling of EUR100,324 for 2015 for any employees who started work after 31 December 1995.

 

Bonuses

30. Is it common to reward employees through contractual or discretionary bonuses? Are there restrictions or guidelines on what bonuses can be awarded?

Employees are commonly rewarded through contractual or discretionary bonuses. If bonuses are contractual, they are subject to the specific conditions contained in the rules governing the bonus scheme.

 

Intellectual property (IP)

31. If employees create IP rights in the course of their employment, who owns the rights?

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, as 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 (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

32. Is it possible to restrict an employee's activities during employment and after termination? If so, in what circumstances can this be done? Must an employer continue to pay the former employee while they are subject to post-employment restrictive covenants?

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 must 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

33. Are there any proposals to reform employment law in your jurisdiction?

Italian employment law has been recently reformed with the government's approval of eight legislative decrees between March and September 2015. Further decrees from the Ministry of Labour are expected to be issued in order to implement some aspects of the new rules.

 

Online resources

Italian Parliament

W www.senato.it/english/default.htm

Description. Provides information on the Italian constitution, Chamber of Deputies and the Senate of the Republic.

Chamber of Deputies

W http://en.camera.it

Description. Provides information on the fundamental laws of the Italian Republic (such as the constitution, rules of procedure and so on), Chamber, the President, members and on the activities of the Plenary and other bodies, and information on the Chamber's activities at European and international level.

Ministry of Foreign Affairs

W www.esteri.it

Description. Provides information and services for Italians working in other jurisdictions, as well as information concerning passports, visas, pensions, social security, citizenship and so on.

Italian National Police (Polizia di Stato)

W www.poliziadistato.it/articolo/10619-English

Description. Provides information for foreign nationals on residence permits, visa applications and so on.

Ministerial regulation for foreign nationals applying for permission to stay in Italy

W http://img.poliziadistato.it/docs/Decreto_6_10_2011_Contributo_rilascio_e_rinnovo_permesso_soggiorno.pdf

Description. Ministerial regulation that provides for the amounts payable by foreign nationals applying for permission to stay in Italy for periods of three months to two years and for longer periods. It also includes all the exemptions and details of how to make the payment.



Contributor profiles

Franco Toffoletto, Managing Partner

Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)

T +39 02 721 44 224
F +39 02 721 44 500
E sft@toffolettodeluca.it
W www.toffolettodeluca.it

Professional qualifications. Italy, 1982

Areas of practice. Employment law; industrial relations; agency law.

Recent transactions. International and domestic advice to major Italian and foreign multinational companies on employment law.

Professional associations/memberships.

  • 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).

  • Founding member of the Italian Employment Lawyers Association (Avvocati Giuslavoristi Italiani (AGI)).

Emanuela Nespoli, Partner

Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)

T +39 02 72144 220
F +39 02 721 44 500
E sen@toffolettodeluca.it
W www.toffolettodeluca.it

Professional qualifications. Italy, 1996

Areas of practice. Employment law; industrial relations; agency law.

Recent transactions. International and domestic advice to major Italian and foreign multinational companies on employment law.

Professional associations/memberships.

  • Member of the International Bar Association (IBA).

  • Member of the Italian Employment Lawyers Association (Avvocati Giuslavoristi Italiani (AGI)).

  • Member of the Executive Board of the Lombardy Regional Chapter of the Association.

Publications. 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.

Ornella Patané, Senior Associate

Toffoletto De Luca Tamajo e Soci (member of Ius Laboris)

T +39 02 721 44 224
F +39 02 721 44 500
E sft@toffolettodeluca.it
W www.toffolettodeluca.it

Professional qualifications. Italy, 2003

Areas of practice. Employment law; industrial relations; agency law.

Professional associations/memberships. Member of the Italian Employment Lawyers Association (Avvocati Giuslavoristi Italiani (AGI)).


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