Edited by Francesca Tironi, Giulia Spalazzi and Lorenzo Vassalli
In the context of a trial pending before the Court of Appeal of Naples, the Judges had raised a question of constitutional legitimacy about Articles 3, first paragraph, and 10 of Legislative Decree No. 23 of March 4th, 2015, which, in implementation of Delegated Law No. 183 of 2014 (so-called “Jobs Act“), had introduced the new concept of the open-ended employment contract, characterized by increasing protections in relation to seniority in service.
More in detail, the Court of Appeal of Naples, not considering the collective dismissal to fall under the general category of “economic dismissal” and arguing on this point that the Jobs Act violated the guidelines set forth in the Delegated Law, had censured the application in case of collective dismissals in violation of the criteria for the selection of redundant employees of the merely indemnity protections provided by Legislative Decree no. 23/2015 for employees hired after 7 March of the same year.
In the opinion of the Court of Appeal of Naples, in fact, in such cases the reinstatement protection under the previous Law no. 92/2012 (the “Fornero Law“) should have been more correctly applied.
The Italian Constitutional Court, through its Judgement no. 7/2024, following an articulate reasoning that also took into consideration the parliamentary work and the overall purpose pursued by the Jobs Act, dissociated itself from the reasoning followed by the Court of Appeal of Naples. In fact, this judgment confirmed not only that the category of collective dismissals must be included within the category of “economic dismissals”, but also established that the compensation protection dedicated to employees and provided for this type of dismissal by the Jobs Act (which, it should be recalled, provides for – except in the case of null and void, oral or discriminatory dismissals in which reinstatement is also provided for – only a compensation indemnity not subject to social security contributions and amounting to no less than six and no more than thirty-six monthly salaries) is overall adequate and sufficient to compensate any prejudice suffered by the employee dismissed in the context of a collective dismissal procedure.
Finally, in the same ruling, the Constitutional Court reiterated what had already been previously affirmed on the subject of the alleged violation of the constitutional principle of equal treatment by the Jobs Act: in fact, according to the Constitutional Court, no unequal treatment between employees hired before and after March 7th, 2015 can be recognized – with reference to the protection due in the event of unlawful economic dismissal – since the Italian Lawmaker was not constitutionally obliged to make the new Jobs Act rules applicable also to those employees who were already in service on March 7th, 2015.
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