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Global employment briefing: Italy, December 2015

  • Italy

    21-12-2015

    Reform of section 2103 of the Italian civil code, concerning modification of work duties

    Section. 3 of law decree no. 81 of 2015 significantly amended section 2103 of Italian civil code.

    In its original form the rule set out that “an employee must be assigned to the duties for which he has been hired or to those corresponding to the higher category he had subsequently achieved or to duties equivalent to the last duties effectively performed without any decrease in the salary”.

    As intuitable, case law particularly focused on the concept of equivalence of duties in cases of change of work tasks. In brief, case law references univocally established that in the event of exercise of the right to modify the employee’s work duties, the court must verify in practice whether the new duties are included in the specific professional competence that the employee has acquired, and if such duties ensure at the same time the possibility to use and increase the knowledge and expertise acquired in carrying out the previously assigned duties.

    The prohibition for the employer to carry out a detrimental modification of the work duties according to art. 2103 of Italian civil code also operated when different duties were assigned to a worker, notwithstanding the formal equivalence between previous and subsequent duties. In fact a court needs to ascertain whether the new duties are inherent to the employee’s specific skills set, without limiting the examination to the formal grading of the employee.

    As a consequence, a legitimate modification of work duties used to be subject to very strict requirements: attention had to be paid not only to maintaining a formal equivalence, but also to a safeguarding of the specific skills acquired.

    The reform now enables the employer to assign duties which are not necessarily equivalent, but referable to the same level and legal category of grading as per the applicable NCLA. It should be borne in mind however, that while the employer will have greater leeway in the exercise of his powers, the employee’s level and legal category cannot be amended. Therefore an employee employed as a clerk cannot be assigned a worker’s duties, even if included in the same category in accordance with the applicable collective bargaining agreement.

    If necessary the new duties may carry an obligation for the employer to provide training.

    However, failure to provide such training does not imply the nullity of the assignment of new duties. Such assignment will be valid regardless of whether training is made available. This could lead to unacceptable consequences as the employee lacking proper training might be required to carry out duties that he is not able to manage. An example could be that of a receptionist/secretary being required to carry out bookkeeping tasks (and vice versa) without proper training.

    Case law references, dating necessarily from before the amendment, already established the legitimacy of the employee’s refusal to fulfil assigned duties that, without proper training, may place both the employee and third parties at risk.

    In addition, lacking adequate training, it is unlikely that an employee could be held responsible for faulty performance or for damage caused to the employer.

    In other words: the training obligation is not a mandatory requisite for the validity of the work duties’ modification but, in any case, such training can be demanded in application of the good faith and correctness criteria in the fulfilment of the contractual obligation.

    The amended section 2103 also states: “in case of modification of the company’s organization and structure affecting the employee’s position, the employee can be assigned duties included in a lower level, provided that they are included in the same legal category”.

    It remains to be seen – and case law will indicate this – what the entity of the company organization and structure modification that justify the assignment of a lower level will be.

    Some authors have already pointed out that law no.184 of 2014, by means of which Parliament established the guidelines of future law decrees to be implemented by the Government, set out that the restructuring, reorganization or company conversion processes must be identified on the basis of objective criteria.

    In accordance with such rules, the legitimacy of a detrimental modification must be the consequence of a large scale, genuine company reorganization process, where also the causal link needs to be proved. A mere organizational act affecting a single worker’s position would not be sufficient: this is in order to avoid provisions aimed at affecting the position of a determined worker.

    Further cases of assignment of lower level duties, provided that they are included in the same legal category can be set forth by applicable collective bargaining agreements.

    The modification of work duties must be notified in writing, subject to nullity, and the worker is entitled to maintain the previous category and salary, excluding such portions of salary that are linked to specific conditions of performance of duties.

    The second part of section 2103 does not contain any major changes.

    The rule sets out that individual agreements aimed at modification of work duties, of the legal category and relevant compensation may be entered into before settlement bodies enabled by law or before similar bodies, in order to allow the employee to keep the job, to acquire different skills and improve life conditions. This already happened in practice.

    In the event of assignment of higher level duties, a worker is entitled to economic conditions corresponding to the activity performed and the assignment becomes on an indefinite term basis, if the assignment takes place for reasons other than substitution of another worker, after the period established by the applicable collective bargaining agreement or, lacking such indication, after six months and if the worker agrees. Before the reform, such term was three months. It is also reaffirmed that proven technical, organizational and production reasons must ground the transfer of a worker from one production unit to another.

    Book: Eversheds Course London 10/05/2015
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