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Covid-19 pandemic and labour market

Ban on dismissals and case-law precedents hereof

In order to keep the employment rate the same as before the spread of Covid-19 pandemic in Italy, a prohibition on dismissals relying on either collective or individual redundancy being served applies until 30 June 2021 (or until 31 October 2021, as far as employers meeting certain requirements are concerned).

On 11 November 2021, the Labour Court of Mantova has declared the invalidity of the dismissal for individual redundancy served to an employee upon the ground that the shop at which she was employed would have been shut down: according to such Court, albeit this dismissal would have fallen out the scope of the prohibition (which does not apply in case of shutdown of the business following the subjection of the employer to the winding-up or the bankruptcy procedure), the employer was not able to demonstrate the actual shutdown of the shop since it has not filed with any defences in the relevant proceedings.

The Labour Court of Trento (ruling issued on 21 January 2021) has declared the fairness of the dismissal for cause served to an employee who had been absent from work for a 14-day period as quarantined, since disciplinary dismissals are not included within the scope of the ban on dismissals. Moreover, according to such Court, the seriousness of the employee's breach was as such as to ground her dismissal with immediate effect since – when she had decided to go on holidays in a foreign Country – she was aware that, once back in Italy, she would have been prevented from going to work over the quarantine term.

Conflicts have arisen with respect to dismissals owing to the relevant employee's physical unsuitability as, albeit these use to be included within the "general" category of dismissals for individual redundancy, in these dismissals the redundancy does not qualify as a direct consequence of the decrease in the employer's revenues following to the drop in consumption associated with the spread of Covid-19 (as happens in those dismissals which the prohibition is aimed at preventing). According to the ruling issued on 7 January 2021 by the Labour Court of Ravenna, also these dismissals are prevented from being served over the term of the prohibition as adversely impacted by the spread of the pandemic: indeed, since the employer's organizational structure is deeply changed due to the current economic crisis, this affects the assessment about the existence of vacant positions which may be assigned to employees in order to avoid their dismissal, that employers must carry out before serving dismissals for individual redundancy, including those owing to the relevant employee's physical unsuitability.

Lastly, albeit such prohibition should not apply to those categories of employees – including executive status one – whose employment relationship is not governed by the "general" regulations on dismissals which are expressly recalled by the statutory provisions setting forth the ban, the Labour Court of Rome has (surprisingly) declared the invalidity of the dismissal served to an executive, upon the legal argument that reference made by the above statutory provisions is meant to identify those dismissals which fall within the scope of the ban (namely, all those arising from an individual redundancy) but not also the categories of employees who are "protected" by the same prohibition (ruling issued on 26 February 2021).

What if employees refuse to get vaccinated against Covid-19?

According to the national vaccination plan against Covid-19 established by the Italian Government, health workers have been entitled to receive preference over any other persons (including people over the age of 80 and those with health problems) during the first months of the implementation of such vaccination plan.

Issues have arisen as several out of them refused to get vaccinated, thus exposing both themselves and patients with whom they get in contact to the risk of Covid-19 infections: in particular, it was debated where health workers who did not get vaccinated would qualify as unsuitable to the work performance, thus being their employers entitled to suspend them from both the work performance and the salary as long as the ban on dismissals referred to above is effective (as a matter of fact, dismissals owing to the relevant employee's professional unsuitability are to be included within the "general" category of dismissals for individual redundancy, so they fall within the scope of the statutory prohibition) and to dismiss them once this ban is over.

At first, the Labour Court of Belluno (ruling issued on 19 March 2021, which – to our knowledge – is the sole case-law precedent about this issue) stated that the employer is entitled to unilaterally put health workers who have refused to get vaccinated on (paid) holidays, as it has the obligation to protect its employees' health and safety at work (otherwise, where health workers who refused to get vaccinated would be allowed to access its premises, such obligation would be breached).

Afterwards, these issues have been definitely solved by Law Decree no. 79/2021: indeed, pursuant to section 4 hereof, where health workers who perform their duties in both private and public hospitals, hospices, residential care homes, pharmacies, drugstores and firms refuse to get vaccinated, their employer is entitled to unilaterally change their tasks and, where these qualify as lower ones, to reduce the amount of their wages or, alternatively, where no other positions are available, to suspend them from both the work performance and the wage (these measures will cease to be available once health workers agree to get vaccinated or the national vaccination plan is fully implemented and, in any case, by 31 December 2021).

However, similar issues will arise once employees other than health workers will be allowed to get vaccinated according to the national vaccination plan.

Measure aimed at increasing the recourse to fixed-term employment contracts

Albeit the above ban on dismissals is effective in Italy as of 17 March 2020, the overall number of unemployed workers in Italy is significantly increased in the first three quarters of 2020: indeed, 470,000 jobs have been lost and the employment rate is decreased by 2% with respect to the first three quarters of 2019.

Reasons for these figures may be identified in the fact that the ban on dismissals only applies to employees hired under a "regular" open-term contract, so employers are permitted to terminate the so-called "flexible" contractual patterns and not to renew fixed-term employment contracts or extend their term upon its expiry: as a matter of fact, the overall number of fixed-term employment contracts decreased by 677,000 units in the second quarter of 2020 and by 449,000 units in the third one.

Therefore, in order to reduce the risk that the spread of Covid-19 pandemic may adversely impact fixed-term workers, until 31 March 2021 recourse to this contractual pattern (as any extensions and/or renewals hereof) has been allowed even in the absence of those reasons allowing the hiring under a fixed-term contract rather than on an open-term basis (indeed, according to the "ordinary" regulations, fixed-term contracts whose duration exceed 12 months are permitted to be executed only upon occurrence of objective and temporary needs, which are to be other than those relating to the company's ordinary business; the need to replace employees who are absent from work and are entitled to keep their position during their absence; or needs arising from a temporary and significant increase in the ordinary business of the company that could not be planned in advance).

Smart working: the new "ordinary" modalities of the work performance

As per statutory "emergency" regulations enacted by the Italian Government following the spread of Covid-19 pandemic in Italy, there is no legal requirement for employers to implement smart working, albeit this is strongly "recommended".

In order to promote the actual recourse to smart working, until 30 April 2021 (such term is likely to be postponed) this is allowed even in the event that the individual agreement whereby rules governing smart working – and, in particular, the relevant employee's right to disconnection and the powers of verification granted to the employer – are set out is not executed in advance between the employer and the relevant employee, as required in case of "ordinary" smart working pursuant to the relevant statutory regulations.

Moreover, until such term, the recourse to smart working is to be communicated to public bodies through a simplified IT procedure (otherwise, in case of "ordinary" smart working public bodies must be also provided with copy of the above individual agreement).

This has led to a significant increase in the recourse to smart working: indeed, the 41.9% of employees who perform duties which may be carried out by remote have carried out their tasks with smart working modalities during the second quarter of 2020, while this percentage was lower than 10% in 2019.