Constitutional Court urges legislative intervention on protection regimes provided for unlawful dismissal in small companies 

Prepared by Francesca Tironi, Giulia Spalazzi and Marco Bove

The Italian Constitutional Court, in decision No. 183 filed on July 22, 2022, ruled (again) on the protection regimes provided by the so-called Jobs Act (Legislative Decree no. 23/2015) in case of unlawful dismissal.

Unlike the previous rulings – No. 194/2018 and No. 150/2020 in which the Court had directly amended Articles 3 and 4 of the Jobs Act by restoring the judge’s discretion with reference to the commensuration of compensation for damages in case of unlawful dismissal – this time the Court ruled indirectly on the protection regime provided for employers who do not reach the size limits provided by Art. 18 of the Workers’ Statute (more than 15 employees in each head office, factory, branch, office or autonomous department or in any case more than sixty employees nationwide).

The Italian Constitutional Court, in fact, declared inadmissible the remission of the Court of Rome regarding the compensation indemnity for unlawful dismissal provided for by Article 9 of the Jobs Act (“Where the employer does not reach the dimensional requirements referred to in Article 18, eighth and ninth paragraphs, of Law no. 300 of 1970, Article 3, paragraph 2, does not apply, and the amount of the indemnities and the amount provided for in Article 3, paragraph 1, Article 4, paragraph 1, and Article 6, paragraph 1, is halved and cannot in any case exceed the limit of six months’ salary.”) calling on Parliament to amend the regulation.

According to the judges, such a modulated allowance (between 3 and 6 monthly payments) represents “a virtually uniform form of protection” and would give exclusive importance to “the number of employees”. Furthermore, according to the judges, “said protection regime does not implement the balance of opposing interests, which is the primary function of an effective indemnity protection against unlawful dismissals”.

As anticipated, the Constitutional Court recognized the existence of a regulatory vulnus, but did not directly ruled on the legislative framework, having failed to find a constitutionally adequate solution that could guide corrective action. It was therefore left to the Parliament to adopt appropriate remedies for unlawful dismissals announced by employers who do not meet the abovementioned dimensional requirements. On this point, the Constitutional Court suggested the adoption of more ductile and complex distinctive criteria for the calculation of compensation in the event of unlawful dismissal, which would not only take into account the requirement of the number of employees, but would relate to the differences between the various organizational realities and the diverse contexts in which they operate.

Finally, the Court pointed out that in the event of further legislative inertia, it could not shy away from directly intervening in the regulatory framework despite the critical issues described above. 

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