The Italian National Social Security Institute (Istituto nazionale della previdenza sociale, ‘INPS’), with Circular No 32/2023, provided administrative instructions for accessing the New Social Insurance for Employment (Nuova Assicurazione Sociale per l’Impiego, ‘NASpI’) unemployment benefit in cases of resignation of a working father who has taken compulsory paternity leave. This area is governed by the new Article 27 bis of Italian Legislative Decree No 151/2001 (Testo Unico in materia di tutela e sostegno della maternità e della paternità, Maternity and Paternity Protection and SupportConsolidation Act, the ‘Consolidation Act’), as already provided for in cases of resignation of a working father taking alternative paternity leave, under Article 28 of the Consolidation Act.
It should be recalled that Article 28 of the Consolidation Act regulates alternative paternity leave taken in lieu of the mother’s leave in the presence of particularly serious situations, such as the death or serious infirmity of the mother, the abandonment of the child by the mother or when the child is in the exclusive custody of the father.
With the introduction of Article 27 bis of the Consolidation Act, the right to access the NASpI allowance is therefore also extended to working fathers who have taken the period of compulsory leave and who voluntarily resign within the first year of the child’s life.
In its circular, INPS reviews the regulations on paternity leave. It focuses first of all on the amendments that Italian Legislative Decree No 105/2022, in force from 13 August 2022 and containing the provisions aimed at improving work-life balance for parents and caregivers, made to the Consolidation Act. In particular the circular makes reference to the introduction of Article 27-bis, relating to ‘Compulsory paternity leave’, and to the amendment of paragraph 7 of Article 54 on the prohibition of dismissal, by which the prohibition was also extended to a working father who has taken compulsory leave (Article 27-bis of the Consolidation Act).
The new Article 27-bis of Italian Legislative Decree 151/2001 introduced compulsory paternity leave. This requires working fathers to abstain from work for a period of 10 working days, to be taken from the two months preceding the presumed date of birth and within the following five months.In cases of multiple births, the duration of the leave is doubled, thus increasing to 20 working days.
The Institute also specified that the 10 working days are not divisible into hours but may be used on a non-continuous basis. In the same way, the leave is also available in the event of the perinatal death of the child.
This leave is also available during the working mother’s maternity leave and is also compatible with alternative paternity leave under Article 28 of the Consolidation Law.
Articles 54 and 55 of the Consolidation Act regulate the prohibition on dismissal and resignation of mothers and fathers during the maternity and paternity protection period.
In particular, Article 54 of the Consolidation Act provides that working mothers may not be dismissed from the beginning of the pregnancy period until the end of the period of compulsory leave from work, and in any case until the child is one year old.
With the additions made to these rules by Italian Legislative Decree No. 105/2022, and also in cases of taking compulsory paternity leave (Article 27-bis of the Consolidation Act), the prohibition on dismissal also applies to working fathers for the duration of the leave itself and is extended until the child is one year old.
Accordingly, the latter provision – which already in its original wording provided for the protection of the prohibition on dismissal of the working father in the event of taking alternative paternity leave under Article 28 of the Consolidation Act – extends the prohibition on dismissal also in the event of taking of compulsory paternity leave under Article 27-bis.
Article 55 of the Consolidation Act also provides that in the event of voluntary resignation submitted by the working mother during the period for which the prohibition on dismissal applies, the working mother is not required to observe the notice period and is entitled to the indemnities provided for by legal and contractual provisions in the event of dismissal. In this regard, it should be noted that these provisions also apply to a working father who has taken alternative paternity leave.
With regard to the above, following the concurring interpretation of the Ministry of Labour and Social Policy of the above mentioned legal provisions, INPS has clarified that by reason of the generic reference to ‘paternity leave’ and in the absence of a specific qualification thereof the protections provided for by Article 55 are to be understood as covering the working father both in the case of taking compulsory paternity leave and in the case of taking alternative paternity leave, governed respectively by the aforementioned Articles 27-bis and 28 of the Consolidation Act.
Before the aforementioned amendments to Articles 54 and 55 of the Consolidation Act, access to NASpI in the event of resignation during the period in which dismissal is prohibited and until the child is one year old was granted to the mother, and also to the father, but only in the case of alternative paternity leave, which can be taken ‘such as the death or serious infirmity of the mother, the abandonment of the child by the mother or the child is in the exclusive custody of the father’.
As a result of the abovementioned amendments, a father who has taken compulsory paternity leave and/or alternative paternity leave is entitled to NASpI unemployment benefit, subject to compliance with all other legislative requirements.
The position remains that, in the event of resignation submitted by a worker who takes (compulsory or alternative) paternity leave in the subsequent protected period until the child is one year old, the employer is required to pay the so-called redundancy payment to finance the NASpI unemployment benefit.
In implementing the indications contained in its circular, INPS also specified that applications for NASpI unemployment benefits submitted by working fathers following resignations occurring during the period in which the prohibition against dismissal applies, and rejected pending the publication of the circular itself, may be re-examined on application by the parties concerned to be forwarded to the competent INPS office.