Prepared by Francesca Tironi, Marzio Scaglioni, Giulia Spalazzi and Leila Rguibi
On March 20th, 2023, the Italian National Social Security Institute (“INPS“) published its Circular no. 32 of 2023, by means of which it provided administrative instructions concerning access to the NASpI unemployment allowance following the resignation of a father who has taken paternity leave pursuant to Articles 27-bis, on compulsory paternity leave, and 28, on alternative paternity leave, of Legislative Decree No. 151 of 2001 (the so-called Consolidated Law on Maternity and Paternity Protection and Support, hereinafter only “T.U.“), as recently amended by Legislative Decree No. 105 of June 30th, 2022, which introduced Article 27-bis into the T.U. itself.
The aforementioned new legislation has entailed important changes in the field of paternity leave, the effects of which, as clarified by INPS, have a twofold impact, concerning both the protections originally provided only for working mothers, now to be extended also to working fathers, and those protections originally provided only for the so-called paternity leave alternating with maternity leave, now to be extended to the whole spectrum of paternity leaves.
The legal background: the rules affected by the legislative amendment occurred in 2022
In order to clarify the scope of the legislative amendments that have occurred in this context, it is necessary to examine the items affected by these amendments in light of the original legislative wording contained in the T.U., and thus point out that:
- Pursuant to Article 54(7) of the T.U., until August 2022, only working fathers taking paternity leave under Article 28 of the T.U., i.e. paternity leave as an alternative to maternity leave, could be subject to the same prohibition of dismissal as working mothers. Thus, only working fathers who took this specific paternity leave were subject to the prohibition of dismissal until the child turned one year old.
- In clear application of the same legal reasoning, Article 55 of the T.U. provided that working mothers who resigned during the period of the prohibition of dismissal referred to above were to be paid the indemnities provided for by statutory and contractual provisions in case of dismissal, with the worker being exempt from having to serve any notice period. This protection was expressly extended also to the working father who had taken the “paternity leave”, without any specification as to what type of paternity leave was meant thereof. It should be recalled, however, that the reference to paternity leave, at the time, could only be to that referred to in Article 28 T.U. mentioned above, and not also to the mandatory leave referred to in the subsequently introduced Article 27-bis.
- Finally, with regard to the eligibility for the NASpI unemployment allowance by working fathers taking paternity leave, INPS recalled that, under the previous wording of the T.U., such eligibility was guaranteed only with reference to the leave referred to in Article 28 of the Consolidated Act, i.e. the so-called alternative paternity leave.
The legislative amendment of August 2022
The aforementioned Legislative Decree No. 105 of 30 June 2022 affected the legislation summarised above in the following terms:
- Article 27-bis was introduced into the T.U., which regulates the so-called compulsory paternity leave, which was previously not covered by the T.U..
- Article 54 of the T.U. has been amended, and now expressly refers to both types of paternity leave: that of Article 28, as in the previous wording of the provision, and that of the newly inserted Article 27-bis. The ban on dismissal described above was therefore unequivocally extended to the whole range of paternity leaves.
- Notwithstanding the above, the wording of Article 55 T.U. was not amended. The vague reference to “paternity leave” described above remaining had opened a debate among practitioners as to whether or not the protections provided for in the case of resignation analyzed above could also be included in the new hypothesis introduced by Article 27-bis.
INPS clarification and its consequences
The Circular under consideration has come to settle, affirmatively, once and for all, the question as to whether or not it is possible to extend the protection under Article 55 of the T.U. to the entire paternity leave category. And in doing so, it also pointed out that this solution is also shared by the Italian Ministry of Labour and Social Policies.
As a result, it must now be deemed to be self-evident that all cases of paternity leaves must be intended, as regards the events of dismissal and resignation, to be covered by the same legal guarantee: that of maternity protection.
The natural consequence of the foregoing, therefore, is to confirm that working fathers, in the hypothesis of the aforementioned Article 55 of the T.U., must also have access to the NASpI unemployment allowance – provided, of course, that all the relevant legal conditions are met.
Hence INPS’s final comment, informing the general public that applications for NASpI unemployment allowance submitted by working fathers following their resignations occurred during the period in which the prohibition of dismissal is in force and rejected by INPS pending the publication of the Circular under examination shall be subject to re-examination.
Administrative and procedural focus
For the purposes of the correct administrative management of the resignation events under consideration, please note that pursuant to Article 55(4) of Legislative Decree no. 151/2001, the resignation submitted by female employees, during the period of pregnancy, and by either male or female employees during the first three years of the child’s life or during the first three years of the child’s placement with an adopted or foster child, or, in the case of international adoption, during the first three years starting from the communications referred to in Article 54(9), must be validated at the competent Territorial Labour Inspectorate for the purposes of their validity. For such individuals, it is therefore not required to send the resignation through the ClicLavoro portal.
For the purposes of the proper management of the employment relationship, it is, therefore, advisable for employers to ensure that the above-mentioned validation procedure is correctly carried out. Finally, in order to ensure the payment of statutory benefits to employees who have taken paternity leave (mandatory or alternative), and who resign before the child’s first birthday, it is necessary for employers to promptly notify their payroll provider that they have taken such periods of leave.
For a deeper discussion, please contact:
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti