In circular no. 106 of 29 September 2022, INPS provided new instructions for working mothers wanting flexible maternity leave or those exercising the right to abstain from work only after childbirth. The two provisions under INPS clarification are contained in Art. 20 and Art. 16 paragraph 1.1 of the Consolidated Law on maternity, Legislative Decree no. 151/2011.
The reference legislative decree, Art. 16, forbids women’s employment two months before the presumed date of birth and three months afterwards. This is without prejudice to Art. 20 below.
In addition to this compulsory maternity leave, the legislation allowed the working mother to use flexible leave i.e., postponing work abstention from a month before the presumed date of birth and having four months’ leave afterwards. In circular no. 43/2000, the Ministry of Labour provided instructions about exercising the right to use flexible leave and stated that “the worker intending to use this option must apply to the employer and institute providing the maternity leave allowance, accompanied by the health certification(s) […] acquired during the seventh month of pregnancy.” In circular no. 152/2000, INPS stated that “the worker intending to use compulsory leave flexibility must submit an application […], accompanied by an NHS gynaecologist certification […] and the occupational physician certification” if the job was subject to health monitoring, verifying that the application was legally compliant and drawn up during the seventh month of pregnancy.
The social security institute specified that, if the health certificates were not drawn up during the seventh month of pregnancy, this would have prevented working in the eighth month meaning the flexibility inapplicability. This would lead to the standard maternity period calculation.
A few years later, the Supreme Court of Cassation, with ruling no. 10180/2013, established that, even if a worker continued to work during the eighth month and submitted the medical certificate after the seventh month, she could qualify for maternity leave until the fourth month following birth and receive the related INPS allowance. The Supreme Court stated that the five-month period option was not available and that a failure to submit the documentation within the deadline could not lead to the loss of any legal provisions.
To counter the increase in administrative and judicial appeals, INPS changed the procedure for requesting maternity leave flexibility to ensure better procedural elasticity and increase protection for working mothers.
INPS specified that the health documentation necessary for maternity leave flexibility, i.e., the National Health Service gynaecologist medical certificate and occupational physician certificate for jobs subject to health monitoring, did not have to be sent to the Institute, but the employer or customer. The worker does not have to attach the employer’s declaration about the physician responsible for workplace health monitoring not being compulsory.
INPS stated that working mothers who applied for flexibility but were denied by the institute can act to have the due allowance for the fifth month of maternity paid due to a delay in the submission of the certificates, net of any statute of limitations.
As an alternative to the standard method to access maternity leave and flexibility, the reference legislation, in Art. 16 paragraph 1.1, provides for “the right to leave only after childbirth and within five months.”
In circular no. 148/2019, INPS provided guidelines on continuing working until the presumed or actual birthdate and specified the medical documentation the worker needed to submit.
In circular no. 106/2022, INPS specified that the medical certificates that must be attached to the online application forwarded to the institute, following the circular publication, don’t need to be submitted to INPS, but are instead sent to the employer before the eighth month of pregnancy.
The instructions contained in paragraph 1.1 of INPS circular no. 148/2019 remain valid. The circular states that:
Pregnant women must send the electronic pregnancy certificate to INPS through the NHS physician or physician acting under an NHS agreement using the electronic channel provided for by INPS circular no. 82/2017.
In note no. 9550 of 6 September 2022, the National Labour Inspectorate explained changes contained in Legislative Decree no. 105/2022 ( “Work-life balance decree, “hereafter the “Decree”) which expanded parent and family caregiver protections and rights.
The Decree introduced Art. 27-bis of Legislative Decree no. 151 of 26 March 2001 (or “Consolidated Law on Maternity and Paternity”, hereafter “TU”), about mandatory paternity leave. This change allows working fathers to abstain from work for ten days. These cannot be divided into hours but can be used non-continuously from two months before the presumed date of birth and within the following five months. This leave is in addition to the alternative paternity leave, governed by art. 28 of the Consolidated Law, to which the father is entitled if the mother dies, suffers serious infirmity or abandons the family, or if the father has exclusive custody of the child, as an alternative to maternity leave.
The National Labour Inspectorate specified the leave:
Resignation, prohibition of dismissal and notice remain in force for the protected period.
Art. 2, paragraph 1, letter i), of Legislative Decree no. 105/2022 amended paragraph 1 of Art. 34 of the Consolidated Law and established that until the twelfth year (and not the sixth) of the child’s life, the mother and father are entitled to a compensable period of three months which cannot be transferred to the other parent. Parents are individually entitled to a further indemnifiable period of three months, for a maximum nine-month collective period (and not six).
The parents’ maximum limits under Art. 32 of the Consolidated Law were unchanged.
The parental leave changes apply to national and international adoption and foster care cases. The 30 per cent allowance is due, for up to nine months, within 12 years from the child’s entry into the family and no later than the age of majority (Art. 36, paragraph 3, of the Consolidated Law).
Under the provision in paragraph 5 of Art. 34 of the Consolidated Law new wording, parental leave is counted in the seniority and does not entail a reduction of holidays, rest, thirteenth month salary or Christmas bonus, except for accessory remuneration connected to workplace presence. This is without prejudice to more favourable collective bargaining provisions.
Based on the new regulations that came into force on 13 August 2022, in priority order, the cohabiting spouse is treated in the same way as a cohabiting partner under a civil partnership and a de facto cohabitant of the disabled person in a serious condition under Art. 1, paragraph 36, of Law no. 76/2016.
Leave may be taken within 30 days (and not 60) from the application. Cohabitation may be established after submitting the application, provided that it is guaranteed throughout the leave.
The new Art. 33, paragraph 3, of Law no. 104/1992 as amended by Art. 3, paragraph 1, letter b), no. 2), of the Decree, includes public employees in a civil partnership or de facto cohabitant as those who have the right to leave. When requested, the right to leave can be given to more than one among those listed above which be used individually, superseding the “sole carer” principle. This is without prejudice to a three-day limit for assisting the same seriously disabled person.
As a result of the amendment of Art. 8, paragraph 4 of Legislative Decree 15 March 2015 no. 81, by Art. 5, paragraph 1, letter a) of the Decree, priority was given to the change of employment contracts from full to part-time. This applies to oncological or serious, chronic, ingravescent degenerative illnesses affecting the spouse, or civil partner.
With ruling no. 21773 of 8 July 2022, the Court of Cassation explained the legitimacy of the dismissal for just cause of an employee caught working at the shop owned by her partner during extraordinary leave. The partner was another company employee.
In the second instance, the Court of Appeal of Bologna rejected the complaint brought by the worker, confirming the first instance ruling which rejected her appeal against the dismissal for just cause. The August 2016 dismissal was issued due to the employee working in the shop owned by her partner during extraordinary leave granted to her to assist her severely disabled daughter, under Art. 42, paragraph 5, Legislative Decree 151/2001.
The employee was caught by a private detective, appointed by the employer company investigating her partner, who was also a company employee. The partner was caught working in the same shop, which he owned, during an illness absence.
Following the dismissal and against the rulings of the first two instances, the worker appealed to the Court of Cassation on various grounds.
The employee stated that the burden of proof’s subject for the dismissal’s just cause, which the ruling under appeal considered as fulfilled by the employer, was not identified. The worker complained that the Court of Appeal had a poor critical approach to the various pieces of evidence collected by the employer. She stated that the Court of Appeal accepted “without the necessary critical analysis investigation reports, photos and films, and statements made by the investigators examined as witnesses, without noting their contradictions.“
In the third instance, the Supreme Court held that the grounds advanced by the employee were inadmissible and rejected the appeal. The Court stated that the second instance Court did not consider the above elements as fully probative but assessed them “together with the other evidence “, as suitable for demonstrating the conduct alleged against the worker by dismissing her.
INPS with circular no. 88 of 25 July 2022, provided operating instructions on the expansion contract, as amended by Law 234/2021 (“Budget Law 2022“).
The experimental scheme for stipulating expansion contracts has been extended until the end of 2023. This imposes a minimum limit of at least 50 work units, calculated as a total in cases with a stable aggregation of companies with a single production or service purpose.
The expansion contract guarantees workers who are less than five years from retirement an early exit from the labour market by receiving a monthly allowance equal to the gross pension accrued at the time of termination. The allowance may be paid to workers enrolled in the employee fund or similar funds hired under an open-ended contract, provided they wish to terminate their employment by 30 November 2023. Workers who wish to access an old age pension with different requirements from the ordinary (e.g., “Opzione Donna” early retirement) are excluded.
The allowance is paid until the first fulfilment of the requirements for pension entitlement, whether old age or early retirement and until the related contribution requirement is met.
Only one annual early retirement plan may be submitted for each year in 2022 and 2023.
Early retirement plans must specify the maximum number of workers involved, the assumed date of employment termination, which is the same for all workers, and the early retirement date, which may not be later than 30 November, for each year.
The employer must obtain a bank guarantee to apply to INPS to fulfil contribution obligations. The amount due to the Institute must be increased by a variable portion of at least 15 per cent, depending on later decisions adopted by the Institute.
At the end of the early retirement plan, INPS will carry out a final check, disbursing any refunds or requesting further sums from the employer.
The employer must send the following documentation to the local INPS office:
1) copy of the expansion contract signed at the Ministry of Labour and Social Policies;
2) the request for the accreditation and modification of the monthly allowance ( Form SC96);
3) the application for authorisation to access PRAT (portal for atypical services) for personnel or the delegate identified by the employer to use the program. This application must be submitted at least 90 days before the entry date.
INPS stated that for annual early retirement plan purposes, submitting several applications for entitlement certification which is 20 per cent more than the number of workers specified in the expansion contract is not permitted.
In answer no. 405 of 2 August 2022, the Inland Revenue clarified the rules for taxation for allowances for employees using their private means of transport to travel outside the municipality where the company is based.
The relevant legislation can be found in Art. 51, paragraph 1, of the TUIR which describes employment income as ” sums and values, received during the tax period, including employment-related donations”. This regulatory extract describes the all-inclusiveness principle which includes sums and values received by the employee connected to the employment relationship, including expense reimbursements, net of the exceptions under the following paragraphs of the same article, in the employment income.
Paragraph 5 of Art. 51 of the TUIR regulates the tax regime of the allowances paid to the employee for transfers , outlining two different taxation regimes depending on whether the services are performed within the municipality where the usual place of work is located.
If services are performed:
In Circular no. 326/1997, the Ministry of Finance clarified that, unlike expenses incurred for journeys made by public transport (e.g. air or rail) which can be documented by showing the relevant tickets, the expenses for journeys calculated using the employee’s private means, must be quantified by the employer based on direct and indirect concordant elements.
In its 30 October 2015 resolution, no. 92/E, the Inland Revenue clarified that:
Under specific service requirements, the applicant authorises employees to use their private means of transport to carry out journeys. An allowance to compensate for the expenses incurred will be paid only if journeys are outside the municipality. This allowance must be equal to the expenses the employee would incur if they used a public means of transport and is paid based on the analytical consideration of the costs incurred. The allowance paid is in lieu of the expenses directly incurred by the employee using their own means of transport for the journey.
The applicant attached to the request for an opinion the internal circular on the compensation methods, which states that “the use of private means of transport may take place only if there are specific and exceptional service requirements and under the following conditions:
The circular states that the employee will obtain insurance cover from the company if they decide to use their private means of transport even if one of the above cases does not apply. The employee will not be entitled to compensation.
The Inland Revenue said that compensation based on public transport fares if it is equal to or lower than the amount calculated based on the ACI tables is non-taxable.Such allowance will not be included in the taxable base for the employment income calculation.
When the travel allowance, calculated based on the public transport tariffs is greater than that based on the ACI tables, the difference must be considered as employment income under Art. 51 of the TUIR and is a taxable base for income and relevant taxation calculation purposes.
With ruling no. 19623 of 17 June 2022, the Court of Cassation decided on compensation for personal injury and non-pecuniary damage caused by a worker’s prolonged exposure to asbestos. The heirs of a worker who died due to an illness associated with exposure to toxic material, complained about the employer’s liability under Art. 2087 of the Italian Civil Code for not having implemented the necessary prevention and protection measures in the workplace.
This case showed that the worker was subject to two different carcinogenic agents: smoking, as he was a habitual smoker who for years smoked 15-20 cigarettes a day, and asbestos exposure, as he worked as a welder.
When calculating the pecuniary damages, the Court of Cassation upheld the interpretation of the Court of Appeal, which, in the second instance, pointed out that there was a concurrence of harmful causes that resulted in a single and indivisible event. Considering a twofold causal factor, the Court decided to apply the principle of equivalence of concurrences under Articles 40 and 41 of the Italian Criminal Code, since it was impossible “to make a causal allocation between the two carcinogenic factors, equally responsible for causing the harmful event.”
Since it was impossible to make a correct causal allocation between the two carcinogenic factors, they must be held equally responsible for having caused the syndrome. This meant that party liability was unaffected, but damage calculation will be heavily reduced compared to the family’s claim.
As the second ground of appeal, the heirs requested compensation for non-pecuniary damage, arguing that the worker was aware that he was exposed to a pathogen and that many colleagues got oncological severe illnesses, often leading to death. This caused uncertainty about his own life, worsening his quality of life and inducing him to undergo numerous and periodic medical check-ups. They claimed that this caused the worker to be concerned about falling ill and probably dying.
In the second instance, however, the Court of Appeal denied the heirs recognition of non-pecuniary damage due to a lack of non-pecuniary or existential damage, holding that rebuttable presumptions, were inapplicable and that the non-pecuniary damage had to be proven.
However, as already clarified by the Labour Section in ruling no. 24217 of 2017, the Supreme Court overturned the second instance decision, holding that ” damages resulting from the disruption of the everyday lifestyle can be compensated regardless of documented biological damage, when it refers to the impairment of the right to the normal conduct of life and the right to the free and full expression of one’s daily life habits. These are constitutionally guaranteed and supported by the European Convention on Human Rights, Art. 8. The Court stated that proof of the prejudice suffered can be provided by means of presumptions.”
It followed from this case law that biological damage due to a disruption of normal private life and constituting “an internal suffering of the person” took the form of “injury to inviolable personal rights, which were under constitutional protection.” If this was submitted and proved including by using presumptions, it would provide entitlement to compensation for damages.
The National Labour Inspectorate (“INL“), with note no. 1451 dated 11 July 2022, provided some clarifications on the applicability of the penalties under Art. 1, paragraph 73, of Law 234/2021 ( Budget Law 2022) to extracurricular internships begun before 1 January 2022 and continued afterwards, and contribution recoveries deriving from fraudulent internships.
INL explained the concept of the permanent nature of an offence. Its Note 3/2019, which referred to a fraudulent provision, highlighted how the offence was characterised by “an intent to circumvent contractual or mandatory rules that found its existence in an appreciable continuity of the unlawful action. The permanent nature of the offence implies its duration throughout the provision, its end coinciding with the cessation of the conduct, which is relevant to identify the applicable rule and the statute of limitation.”
From 1 January 2022, a fraudulent extracurricular internship is an offence of a permanent nature, punished under Art. 1, paragraph 723 of the Budget Law.
To prove fraud, it is necessary to prove that the internship was a true employment relationship.
Based on these principles, INL stated that continuing or ending a fraudulent extracurricular internship after 1 January 2022 entails the application of the penalties set out in paragraph 723 of Art. 1 of the Budget Law. This provision states that the “internship is not an employment relationship and cannot be used as an employment replacement. If the internship is fraudulent, circumventing the regulations set out in the previous sentence, the host party shall be fined € 50 for each intern involved and each day of internship, without prejudice, at the intern’s request,” to the verification of the existence of an employment relationship from the time of the court ruling,”
The administrative penalties normally applicable to employment relationship re-qualification (failure to report the establishment of the employment relationship and inability to deliver the employment declaration) do not apply to the fraudulent internship.
This is without prejudice to recognising the existence of an employment relationship at the intern’s request from the time of the court ruling. INL referred to Circular 530, stating that the intern will assess such a request “which will affect the internship relationship (…) since its establishment, even if it occurred before 1 January 2022.”
According to INL, this does not apply to social security profiles and consequent contribution recoveries related to the internship, which simulated an employment relationship. This is because the recovery of contributions cannot be considered conditional upon the worker’s choice to take the matter to court to obtain the recognition of the employment relationship with the host.
In its answer to question no. 383 of 18 July 2022, the Inland Revenue clarified the option to extend the regime provided by the “Decreto Crescita” for repatriated workers.
Article 5, paragraph 2-bis of Decree Law no. 34/2019, the Decreto Crescita, by amending Art. 16 of Italian Legislative Decree no. 147/2015, stated that the provisions of the special tax regime for “repatriated” workers “are applicable for a further five tax periods to workers with at least one minor or dependent child, including in pre-adoptive foster care” or if “workers become owners of at least one residential property unit in Italy, after the transfer to Italy or in the 12 months before the transfer.”
The benefit applies to those who had transferred their residence before 2020 (the regulatory provision starting date) and who, as of 31 December 2019, benefited from the repatriated workers tax regime under Article 16 above. This is subject to the payment of 10 per cent (or five per cent in some instances) of the taxable employment and self-employment income produced in Italy and relating to the tax period before the option was exercised.
The payment methods and deadlines were established by the Inland Revenue with order no. 60353 of 3 March 2021, by which the amounts must be paid, in a single instalment, using the F24 payment form by 30 June following the last year of the first five-year benefit period.
The applicant, had already transferred residence to Italy before 2020, and notified the Inland Revenue of:
The applicant requested to use the voluntary settlement to pay the additional amounts due late and benefit from the five-year extension of the repatriated workers regime.
The Inland Revenue, based on the clarifications provided in Circular no. 33/E of 28 December 2020, stated that (i) the option is subject to the payment within the deadline under the Agency Director’s Order (Ref. no. 60353/2021) and (ii) those (as in this case)for whom the first period to use the benefit ended on 31 December 2020, the payment had to be made within 180 days.
The tax authority stated that – if the payment of the amounts due was omitted or deficient, the benefit could not be applied. A voluntary settlement was not allowed for this case.
The Agency said that the applicant could not benefit from the favourable repatriated workers regime for additional five tax periods because of the incorrect payment but may recover the sums paid under Art. 21 of Legislative Decree 546/1992.
In its 26 May 2022 ruling, The Court of Udine outlined a resignation by conclusive facts case and the “electronic resignation” procedure under Article 26 of Legislative Decree no. 151/2015.
The case involved a female worker who took time off work for a prolonged period, from 14 December 2019 and for more than six months afterwards, without any justification. The employer issued the worker with a letter sent on 12 June 2020 formally inviting her to resign. When the worker’s failed to respond, the mandatory “Unilav” employment termination notice due to resignation was sent to the Employment Centre on 8 July.
This termination was contested by the worker, since she had never submitted her resignation, or the electronic validation required by law. At the same time, she declared herself willing to return to work, subject to reimbursement of accrued remuneration and the relevant social security contributions due for the months that had elapsed from the time of her absence until her reinstatement.
The worker justified her prolonged absence as down to “psychophysical prostration” due to the assignment by the employer of “burdensome” tasks of food delivery in certain municipalities.
The employer objected stating that the employment relationship had been terminated by the sole will of the worker, due to conclusive facts consisting of unjustified absence for more than six months. This was corroborated by the assertions expressed by the worker to her unit manager, consisting of her intention to no longer return to work following the holidays, which began on 9 December 2020, because of her dissatisfaction with her work.
According to the employer, the worker’s stated intention was to provoke the employer’s termination and obtain the Naspi benefit.
The court found that it was uncontroversial that the worker had voluntarily absented herself from work continuously from 14 December 2019, without providing any justification and without replying to the employer’s letters for more than six months.
Despite the 31 December 2019 disciplinary notice, in which the worker was charged with unjustified absence since 14 December, and the 12 June 2020 letter, in which the employment termination was acknowledged “as a matter of fact ” and the worker was invited to “resign under the applicable electronic procedure,” the employee remained silent, confirming that she had not voluntarily responded to those notices due to a lack of interest.
The worker urged her unit manager not to assign her any shifts over the Christmas period, as she “did not think she would return” and expected the company, to “dismiss her.”
It was clear to the judge that the worker “wanted to terminate her employment with the company […] on her own initiative, having made this intention […] clear to her manager and not having returned to work after the holidays.” Besides the validity of the employee’s grounds, defined as “late and rather generic”, the court observed how “these reasons were a clear and further sign of the plaintiff’s intention […] to terminate her employment.”
Despite the legislative change that took place in 2015 on resignation and consensual employment termination, the court further observed how the employment contract termination by mutual consent and especially resignation was based on Articles 2118 and 2119 of the Italian Civil Code, which lay down the general rule of the worker’s right of “free withdrawal”, subject to notice. This free withdrawal right was unchanged, so the ruling shows that “resignations may continue to be valid, at least in specific cases, even as a result of prerequisites other than the electronic formalisation imposed by the 2015 amendment.”
The court highlighted how the Delegated Law no. 183/2014 included “simplified methods to ensure an exact date and the authenticity of the worker’s will to resign or consensually terminate the employment relationship. This ensures the certainty of the relationship termination for cases of “conduct implying an intent” by the worker […]”.
Such an aside was unimplemented in Legislative Decree no. 151/2015, the content of which seems to be unenforceable in cases of resignation by conclusive facts.
It was deemed unreasonable to consider that the employment could be terminated through a dismissal for just cause, if the worker did not resign due to inertia. This would affect the “free exercise of entrepreneurial independence” under Art. 41 of the Constitution, in terms of risks (justification in a hypothetical trial) and costs (Naspi contribution). The consequence would be an “unjust loss of resources” to be destined to those workers who are entitled to Naspi because they are involuntarily unemployed. Considering the above, the worker’s claim was rejected, and the employment relationship was definitively terminated.
In its message no. 2622 of 30 June 2022, INPS provided clarification on the provisions of Article 10, paragraph 1-bis, of Decree Law no. 24/2022, converted, with amendments, by Law no. 52/2022.
The above law further extended the protections introduced after the COVID-19 pandemic for “vulnerable” workers until 30 June 2022. It introduced substantial changes for the categories of workers who are beneficiaries of the protection originally provided for in Decree Law no. 18/2020.
For rule implementation purposes, reference should be made to Ministerial Decree no. 5 of 4 February 2022, issued by the Ministry of Health in agreement with the Ministry of Labour and Social Policies and the Minister for Public Administration.
The decree, entitled “Identification of chronic illnesses with a lower level of clinical compensation and implications of severity, for which work is normally carried out in remote working until 28 February 2022”, modified the list of chronic illnesses for which work must be carried out in remote working.
The measure establishes, as a rule, the right of workers included in the list, to:
Only where it is impossible to guarantee the above, vulnerable workers may benefit from periods of sick leave which is treated the same as hospitalisation.
The provision modifies the criteria for identifying those entitled, specifying that the protection is provided “exclusively to those affected by the illnesses and conditions identified by the decree of the Minister of Health adopted under Article 17, paragraph 2, of Decree Law no. 221 of 24 December 2021, converted, with amendments, by Law 19 February 2002, no. 11″.
To benefit, it is necessary to possess a certificate issued by local medical-legal bodies attesting to “a condition of risk deriving from immunodepression, oncological illnesses or life-saving therapies” or the “recognition of a disability with implications of severity under Article 3, paragraph 3) of Law no. 104 of 5 February 1992.”
For the period from 1 April to 30 June 2022, INPS will recognise the protection, subject to the assessment of the medical-legal offices, for the categories identified under Ministerial Decree no. 5/2022 and within the expenditure limit of € 3.7 million.
In its answer to question no. 344 of 23 June 2022, Inland Revenue ruled on the tax liability of amounts paid under a settlement agreement. In this case, the amount was compensation made by an employer to settle a long-standing dispute with several employees. This disbursement, which related to entitlements due for 2010, 2011, and 2012, was considered by the employer as subject to separate taxation and requested confirmation from the Inland Revenue.
In its reply, the tax authority provided a civil law definition of the settlement as being “the contract by which the parties make mutual concessions, to put an end to a dispute that has begun or prevent a dispute from arising. Mutual concessions may create, modify or terminate relationships other than the one that was the subject of the parties’ claim and dispute” (see Art. 1965 of the Italian Civil Code).
In line with what was clarified by the Ministry of Finance in Circular no. 326/1997, Inland Revenue specified that “indemnities and sums or values received in lieu of employment income, including those arising from any settlement, are taxable as employment income.”
After the question’s reply, appropriate considerations followed regarding the “comprehensive” nature of employment income, consisting of the “total taxability of everything the employee receives in connection with the employment relationship.” On this point, Article 49, paragraph 1, of the TUIR was cited, according to which:
The same Circular of the Ministry of Finance includes the separate taxation scope of application. The Circular clarified that “the sums and values received, net of legal fees incurred, even as compensation or as part of enforcement, following judicial orders or settlements relating to employment termination are subject to separate taxation”, under Article 17, paragraph 1, letter a), last part, of the TUIR.
It was stressed that separate taxation applies when there are “arrears in remuneration for employee services referable to previous years, received because of laws, collective agreements, rulings or administrative acts or other reasons beyond the parties’ control” under Article 17, paragraph 1, letter b) of the TUIR. This occurs if the sums in lieu of employment income relate to income that should have been received during a tax period, and are received in a later tax period, as a replacement.
As clarified in the above document, the sums and values received because of settlements, other than those relating to the employment termination, where none of the conditions set forth in Article 17, paragraph 1, letter b) apply, are subject to ordinary taxation.
Considering the regulatory and procedural framework described above, the Inland Revenue held that the sums paid by the applicant following the settlement agreement must be included in the employee taxable income for their full amount and subject to ordinary taxation. This is because their payment is not related to the employment termination, nor do any of the conditions set forth in Article 17, paragraph 1, letter b) of the TUIR apply.
In its ruling no. 16562 of 29 April 2022, the Court of Cassation decided on the employer’s occupational safety responsibilities for the risk assessment and workers’ training obligations.
The case originated from the sentence of a private employer to one year’s imprisonment for “aggravated manslaughter”, due to the violation of the regulations on the prevention of accidents in the workplace. This was confirmed on appeal. According to the local court, these violations had caused the death of a worker, who had been entrusted with the maintenance and cleaning of a specific machine.
In challenging the second instance ruling, the defendant presented several grounds of appeal. He contested the “employer” qualification assigned to him in the rulings, arguing that he had been assigned administrative tasks (“ordinary administration”) by the company’s Board of Directors.
The defendant stated he had delegated the safety at work functions to a third party, and that he was not liable for the failure to update the risk assessment document (“DVR”), considering his lack of the status of employer.
However, the Court of Cassation judges identified him as the employer, given his role as company legal representative and his prerogatives in the exercise of decision-making and spending powers. The defendant’s argument concerning the exclusion of responsibility for workers’ safety, due to the ordinary tasks formally assigned to him, was rejected. According to the Court, the defendant’s attributions were such as to guarantee him the exercise of “functional organisational, decision-making, managerial and spending powers, including the implementation of safety measures under the law”, which “gave him a combination of the obligations related to risk assessment, guarantee, and employer’s duties.”
According to the Supreme Court, the confusion between the employer and “prevention and protection service manager” (“RSPP”) roles created “a culpable opacity and organisational dysfunction”, which aggravated the defendant’s position.
The de facto powers exercised by the defendant, “although formally limited to ordinary administration, included every managerial and organisational profile on production, plant control, work procedures, training and information that practically played a decisive causal role in the fatal event.”
From this full employer qualification, the responsibility for the other two contested obligations for the specific negligence and material causality consequently emerged.
According to the Supreme Court, the failure to carry out a complete and exhaustive assessment of the risk connected to the plant where the victim worked is a task that, “on an operational, cognitive, and planning level”, was fully within the defendant’s duties. This is because he was the prevention and protection service manager formally, and a top manager with decision-making and organisational powers over the entire production activity.
The Court observed that “the defendant should have assessed risks and prevention measures on the use of the machinery where (omissis) died, related to the duties and tasks assigned to the victim by the defendant.”
In his capacity as employer, the defendant should have kept the risk assessment document up to date, including the task to which the injured worker was assigned for the machinery.
The Court observed that “the dual role of prevention and protection service manager and employer gives rise to the task of assessing, processing, preventing and managing the risk, including updating the risk assessment document. This is an employer’s duty which cannot be delegated.”
In conclusion, according to the Court of Cassation, the qualification of employer corresponds to “the duty to train and inform workers” which, in this case, was omitted by the defendant. Ascribing to another person the duty to inform and train the deceased worker, constitutes “a mere assertion that is not reflected in any formal act of delegation or specific training assignment.”
Even if he had instructed others to fulfil the obligation to train the deceased worker, the Supreme Court pointed out that “the failure to manage the worker’s training and professional instruction could and should have been controlled and corrected by the defendant if other persons who may have been instructed had not done so.”
The defendant’s grounds of appeal were rejected entirely, since the failure to exercise supervision, control and management of professional training on the use of the machine and related equipment for specific risks was established.
In its answer to question no. 294 of 24 May 2022, the Inland Revenue clarified the employers’ ability to reimburse employees belonging to the “transferred employees” category for the expenses incurred for the purchase of laptops/tablets and entrance tests taken by their children to attend Italian educational institutions. In the answer provided, this reimbursement was particularly relevant when calculating income under Article 51, paragraph 2, letter f-bis, of Presidential Decree no. 917 of 22 December 1986 (Consolidated Law on Income Tax or “TUIR“).
Regulatory references
Art. 51, paragraph 1 of the Consolidated Law on Income Tax (TUIR) defines the all-inclusiveness principle, based on which “all sums and valuables in general, received for any reason during the tax period, including as donations, related to employment” constitute employment income.
Accordingly, cash and values corresponding to the goods, services and works offered by the employer to its employees are considered taxable income and are included in the employment income calculation.
However, the same Article 51, in the following paragraphs, identifies the income components that derogate from the all-inclusiveness principle and are not part of the employee’s income taxable base. Paragraph 2 provides that the following is not part of the employment income:
Considering the above and the issues clarified by the tax authority in its resolution no. 37/E of 27 May 2021, it was specified that the legislation made it possible for the employer to provide education and instruction services, directly or through third parties, and pay employees for the purposes specified, by reimbursing the expenses incurred for family members under Article 12 of the TUIR.
Disbursement conditions
For the sums and values in question to be, in whole or in part, de-taxed, it is necessary that the offer be addressed to “all employees” or “categories of employees.”
“Categories of employees” means that general works, services or sums are available to the same group of employees, even if some do not benefit from them.
The Agency stated that the expression “categories of employees” is not intended to identify the categories provided for by the Italian Civil Code (managers, workers, etc.). The wording refers to employees of a “specific group”, such as, employees of a certain level or qualification, employees transferred abroad or night-shift workers.
It was repeatedly specified that the conditio sine qua non for the exclusion of these benefits from the income calculation is that they cannot apply to individual employees or ad personam (see Inland Revenue Circulars 23 December 1997, no. 326 and 15 June 2016, no. 28/E).
The Inland Revenue recalled:
Conclusions
According to the Inland Revenue, the reimbursement by the employer of expenses incurred by employees who fall into the “transferred employees” category for the purchase of laptops/tablets, is not part of the employment income. The reimbursement of enrolment costs for child entrance tests for enrolment in educational institutions does not generate employment income. This is because such reimbursement may be part of the expenses incurred for school attendance.
In circular no. 62 of 25 May 2022, INPS clarified changes introduced by Budget Law 2022 and the new APE Sociale provisions.
The circular (i) lists the heavy labour categories of professions and workers who can access the benefit with a contribution requirement reduced to 32 years, (ii) shows the new application models and the related forms for employers’ attestations, (iii) describes the APE Sociale compatibility with the various forms of income support, and (iv) clarifies APE Sociale in cases of termination due to “failure to pass the probationary period” or “cessation of business.”
APE Sociale
APE Sociale is a financial benefit introduced by Budget Law 2017 and disbursed by INPS to individuals, who need special protection, are at least 63 years old, have a precise contribution requirement, and are not already holders of a direct pension in Italy or abroad. The allowance payment continues until the beneficiary reaches the age to qualify for an old age pension or an early retirement pension.
Changes introduced by Budget Law 2022
Among the most significant changes introduced by Budget Law 2022, is the 31 December 2022 APE Sociale validity extension. This ensures that those who met the requirements in previous years and did not submit the relevant application for verification, or who were disqualified from the benefit, can reapply. Unemployed workers may apply for the benefit without having to wait for at least three months to elapse after their unemployment benefit was used.
In addition to revising and supplementing the list of professions falling within the “heavy” labour category that can apply for verification of access to the APE Sociale (social security benefit) Budget Law 2022 has reduced the contribution seniority requirement for the following categories of workers to 32 years; (i) construction workers with a national collective labour agreement for employees of construction companies and similar (ii) ceramists and (iii) plant operators for moulding ceramic and terracotta items
Under the case law clarifications, (according to which termination by the employer during or at the end of the probationary period is equivalent to individual dismissal) it was clarified that those dismissed for “failure to pass the probationary period” and unemployed persons due to the cessation of business must be granted access to the APE Sociale. This is without prejudice to the other legal requirements.
APE Sociale compatibility with other income support measures
The Budget Law explained the incompatibility of this benefit with direct pension payments, income support related to involuntary unemployment and compensation provided for the cessation of business. There was nothing about its compatibility with other measures such as the Citizenship Income (RdC) and the Emergency Income (Rem). INPS intervened on this point in the circular under review.
Since Decree Law no. 4/2019 (establishing the Citizenship Income) does not provide for any form of incompatibility or (total or partial) prohibition of combining with the APE Sociale, INPS confirmed its compatibility with the Citizenship Income, even though the related amount contributes to the calculation of the ISEE value taken as a basis for the granting of the Citizenship Income and its calculation.
INPS stated that the Emergency Income cannot be granted to APE sociale recipients since its payment means that the prerequisite for any financial hardship for them and their family no longer exists.
La Corte di Cassazione, con la sentenza n. 9800 del 25 marzo 2022, si è espressa in merito al regime sanzionatorio applicabile in caso di omessa o incompleta comunicazione dei criteri di scelta nell’ambito di una procedura di licenziamento collettivo.
In particolare, la vicenda ha visto la Corte d’appello di Reggio Calabria, in riforma della sentenza di primo grado, dichiarare illegittimo il licenziamento collettivo intimato da un datore di lavoro, determinando come risolto il rapporto di lavoro intercorso con i lavoratori. Il datore di lavoro, a seguito dei fatti, veniva condannato al pagamento di un’indennità risarcitoria pari a 12 mensilità dell’ultima retribuzione globale di fatto in favore dei lavoratori coinvolti.
Difatti, la corte territoriale ha ritenuto che il licenziamento intimato ex legge n. 223/1991 risultasse affetto da una “mera violazione di carattere formale”, consistente nella mancata indicazione dei concreti punteggi attribuiti a ciascuno e dei dati fattuali relativi ai carichi di famiglia nella comunicazione di cui all’art. 4, comma 9, legge n. 223/1991 diretta ai lavoratori, con riferimento all’indicazione dei tre criteri di scelta, dei punteggi astratti previsti in relazione a ciascun criterio e dei dati relativi all’anzianità di servizio di ciascun lavoratore.
I lavoratori coinvolti, considerata la sentenza di secondo grado, presentavano ricorso in Cassazione attraverso una serie di motivi. In particolare, i lavoratori ravvisavano che la corte territoriale avesse valutato erroneamente le carenze della comunicazione finale a loro indirizzata, ex art. 4, comma 9, integrando “non una mera irregolarità formale bensì la violazione dei criteri di scelta, mancando la puntuale indicazione delle modalità di applicazione dei criteri idonea a consentire la valutazione comparativa delle posizioni dei dipendenti e, pertanto, la verifica della corretta applicazione dei suddetti criteri”.
Nell’accogliere tale motivo di ricorso, la Corte di Cassazione osservava come fosse stato più volte affermato che la disciplina della legge n. 223/1991 in materia di licenziamenti collettivi per riduzione di personale rappresenti una “garanzia, di natura essenzialmente procedimentale, destinata ad operare su un duplice piano di tutela – delle prerogative sindacali e delle garanzie individuali – assolvendo alla funzione di porre le associazioni sindacali in condizioni di contrattare i criteri di scelta dei lavoratori da sospendere ma altresì di assicurare al lavoratore, potenzialmente interessato al licenziamento, la previa individuazione dei criteri di scelta e la verificabilità dell’esercizio del potere privato del datore di lavoro” (Cass. n. 19618 del 2011; Cass. n. 15694 del 2009).
In particolare, la comunicazione in argomento ha la funzione di indicare “puntualmente” le modalità con le quali sono stati applicati i criteri di scelta dei lavoratori da licenziare e, coerentemente, risulta finalizzata a consentire ai lavoratori coinvolti, alle organizzazioni sindacali e agli organi amministrativi di controllare la correttezza dell’operazione e la rispondenza agli accordi raggiunti.
La Suprema Corte osserva, infatti, come tale comunicazione “cristallizzi” le ragioni del recesso, non consentendo al datore di lavoro di dedurre in giudizio, successivamente, l’applicazione di modalità della scelta diverse da quelle risultanti dalla stessa.
A tale fine, quindi, l’esigenza di consentire il controllo – sia contestuale che successivo – impone che non solo i criteri, ma anche i presupposti fattuali sulla base dei quali gli stessi sono stati applicati, risultino ricavabili dalla comunicazione.
Nel caso di specie, i giudici della Cassazione hanno ritenuto che la generica indicazione dei criteri dei lavoratori da licenziare abbia “impedito ogni verifica di coerenza tra i detti criteri e la concreta applicazione degli stessi, non offrendo alcun parametro comparativo, rispetto alla posizione di altri lavoratori, idoneo ad escludere la sussistenza di ingiustificati trattamenti più favorevoli, come, invece, sostenuto dalla società”.
Sotto il profilo sanzionatorio, l’orientamento della Corte ha sempre distinto il “caso di violazione delle procedure richiamate all’art. 4, comma 12”, per il quale opera la tutela meramente indennitaria, dal “caso di violazione dei criteri di scelta previsti dal comma 1”, per il quale si applica la tutela reintegratoria. Tanto premesso, mentre la non corrispondenza della comunicazione al modello della legge n. 223/1991 costituisce una mera violazione delle procedure, il diverso caso di “violazione dei criteri di scelta” si ha quando questi siano, ad esempio, illegittimi perché in violazione di legge o illegittimamente applicati, o ancora perché attuati in difformità dalle previsioni legali o collettive.
Nel caso di specie, la lacunosità della comunicazione inviata ai lavoratori si è, dunque, tradotta in un’illegittima applicazione dei criteri di scelta, in assenza di un livello di adeguatezza idoneo a mettere in grado il singolo lavoratore di comprendere per quale ragione lui, e non altri colleghi, fosse stato licenziato e quindi di poter contestare il recesso datoriale.
La Corte di Cassazione disponeva dunque l’annullamento del licenziamento, con condanna alla reintegrazione nel posto di lavoro dei lavoratori e al pagamento di un’indennità risarcitoria in misura non superiore alle dodici mensilità dell’ultima retribuzione globale di fatto.
The National Labour Inspectorate (“INL“), with note no. 856 of 19 April 2022, issued a guide concerning the scope of application of the “maxi- penalty” for undeclared work, regulated by Article 3 of Decree Law no. 12/2002, converted, with amendments, by Law no. 73/2002. This offence is the employment of personnel by an employer without the latter sending the necessary compulsory reporting to the authorities, and any social security, welfare and accident-prevention insurance.
INL pointed out that the employer penalty system under the latest regulatory revisions, has been progressed in bands according to the duration of the unlawful conduct orundeclared employment. The determined penalty has been increased by 20 per cent under Art. 1, paragraph 445 letter d), of Law no. 145/2018. The penalty is:
Under Art. 3, paragraph 3-quater, sanctions are increased by a further 20 per cent in the following cases:
The 2019 Budget Law, in addition to the 20 per cent increase in the amounts due as sanctions, requires the doubling of these percentages where the employer, in the previous three years, has been the recipient of administrative or criminal penalties for the same offences (recidivism).
INL explained how Legislative Decree no. 151/2015 reintroduced the “caveat” of the maxi-penalty to “promote the legalisation of undeclared relationships.”
Three distinct cases are outlined in the note:
The note explained that the “maxi- penalty” does not apply whenever “the employer’s intention not to conceal the employment relationship is evidenced by the contribution obligations previously fulfilled, even if the employment was qualified differently.”
The inspection personnel will not apply the “maxi-penalty” in cases of:
By “legalisation” the INL means when
The Ministry of Labour and Social Policies, under Ministerial Decree no. 67 of 31 March 2022 (the “Decree“), made a significant addition to Ministerial Decree no. 95442/2016 due to the ongoing Ukraine war that is creating a humanitarian crisis, and significant economic and market difficulties.
Two new reasons to access the Ordinary Redundancy Fund (“CIGO”) were introduced – “lack of work, orders and market crisis” and “lack of raw materials or components.”
Legislative Decree no. 148/2015:
CIGO access is subject to the event’s transience and temporariness, and its non-attributability to the company and employees.
Ministerial Decree no. 95442/2016 identified the following as possible reasons for granting the CIGO:
For the reasons under points a), b) and d) of the above list, Ministerial Decree no. 95442/2016 allows CIGO access for:
The Russian-Ukrainian crisis is having a strong impact on the markets and to cope with this economic uncertainty, the Ministry of Labour introduced the following provisions for 2022.
In its ruling no. 7093 of 1 March 2022, The Court of Cassation outlined employer responsibilities on occupational health and safety obligations for interns.
The case originated from an accident that occurred to a student intern on a farm. When cleaning a large tank, the intern climbed a ladder holding a rubber hose connected to the water tap. Together with her tutor, the tank had been opened and the heavy metal lid balanced on the edge. During the cleaning, the lid fell on the intern, hitting her right hand and causing a deep cut wound with a tendon injury.
The judicial process that followed the event ruled that the employer was criminally responsible for the incident, having caused the intern personal injuries which would take 105 days to heal. At the various levels of judgement, it was observed how, under Art. 2, letter a), of Legislative Decree no. 81/2008 ( “Consolidated law on safety at work”), the intern must be included in the broader “worker” category. This is because, for safety at work purposes, anyone who performs “work within a public or private employer organisation, with or without remuneration, including for training purposes in a trade, craft or profession, excluding domestic and family service workers” is considered a worker regardless of the type of contract.
Based on the above provision, the employer was charged with violation of the rules on safety at work because “the tank washing was carried out without any prior risk assessment, training or providing the intern with the necessary protective equipment (Articles 17, 37 and 71 Legislative Decree no. 81/2008).”
The company appealed against the above ruling in cassation, providing several grounds for complaint.
The company stated that it did not have to comply with the provisions of the Consolidated Law on safety at work, since the fulfilment of the intern’s safety obligations was the sole promoter’s responsibility unless a special agreement made this responsibility fall on the host company. The employer observed that the agreement expressly provided that the intern’s insurance coverage against accidents at work was part of the obligations of the promoter, i.e., the university where the intern was enrolled at the time.
The employer observed that it was equally evident that the spaces and facilities made available to interns on the company premises were compliant with the agreement stipulated with the university. No criminal liability could have rested on the employer considering that an occupational safety officer had been appointed to assess the risks within the company.
Lastly, the employer considered that it was clear that the accident suffered by the intern was due to her sudden and unforeseeable behaviour, unrelated to the task entrusted to her. During cleaning carried out by the intern, the lid, probably due to the water pressure, became unbalanced towards the inside of the tank. The intern attempted to stop the lid with her right hand, while continuing to hold the irrigation hose with her left. According to the employer, by acting in this way the intern was fully aware that she was engaging in conduct that was dangerous to her safety, which was attributable to abnormal behaviour that could exclude any company liability. The employer argued, “even with adequate safety training, the accident would have occurred anyway, as the injured person’s behaviour went beyond the most elementary rules of prudence.”
Given the reasons provided by the employer in its appeal, the Court of Cassation held that the grounds of complaint were manifestly unfounded, rejecting the employer’s appeal.
The application of Legislative Decree no. 81/2008 was correct since the figure of an intern is similar to an ordinary employee for all intents and purposes. Consequently, when a company hosts those carrying out internships, the employer must follow the obligations provided for by the consolidated law to ensure their health and safety.
Additionally, the insurance obligation incumbent on the promoter was irrelevant, since, as can be seen from INAIL circular no. 16/2014, it concerns the “insurance obligation of interns and the relevant premium”, without any relevance to safety in the workplace. The Supreme Court found that the existence of any exoneration from employer liability for interns cannot be validly argued in the regulations and the agreement referred to in the appeal.
The Court of Cassation noted how the second instance ruling ascertained the omission of “any information and training on the work to be carried out” by the intern, “who specified that she did not receive any instruction on the working methods.” The employer stated that they “did not know how the tank washing was to be carried out and that they did not receive any training on how to carry out tutoring.” It was evident that the employer did not equip the intern “with personal protective equipment (cut-resistant gloves) necessary to carry out the operation, given the type of lid and the fact that it was not held in any way when it was being moved.”
The Court noted that the employer has a duty to carry out “a prior assessment of the risk to which the intern was exposed, whose position is equivalent to a worker for the above reasons, and the adoption of the necessary safety measures.”
The circumstance, pointed out in the appeal, according to which the company owner availed herself of the services of a professional to resolve
any safety issues had no relevance. On this point, under Art. 17 Legislative Decree no. 81/2008, the risk assessment is a task entrusted to the employer and cannot be delegated.
The intern’s “abnormal” behaviour was deemed irrelevant. “When the event can be linked to the violation of multiple provisions on prevention and safety at work, the worker’s behaviour cannot be considered unusual or excessive even if they have ignored elementary safety rules. It remains the employer’s responsibility to guarantee their health and safety.”
In circular no. 38 dated 8 March 2022, INPS issued the operating instructions to access the early retirement pension under Art. 1, paragraph 87, of Law no. 234/2021 (“Budget Law 2022“), also known as “Quota 102.”
The law recognises the right to an early retirement pension upon reaching (i) a minimum age of 64 years and (ii) a minimum contribution period of 38 years by 31 December 2022. Previous rules governing the “Quota 100” pension, which apply to the early retirement pension introduced by the provision in question, are coordinated with the new pension requirements to be accrued by 2022.
In the circular, shared with the Ministry of Labour and Social Policies, INPS illustrated the requirements to access the new form of early retirement, explaining the legislator process from the establishment of the “Quota 100” pension planned for the 2019/2021 three-year period, on an experimental basis. The latter type of early access to pensions was for those who “complete (completed ed.) a minimum age of 62 years and a minimum contribution period of 38 years in the period between 2019 and 2021, […] the right achieved by 31 December 2021 can (could ed.) also be exercised after that date.”
Article 1, paragraph 87, letter a), of the Budget Law 2022, in supplementing the rules on the “Quota 100” pension, added a sentence to paragraph 1 of Article 14, providing that “the age and contribution requirements referred to in the first sentence of this paragraph shall be 64 years of age and 38 years of contribution for persons who meet the requirements in 2022. The right acquired by 31 December 2022 may be exercised afterwards.”
INPS pointed out that members of the General Compulsory Insurance (“AGO”) and the exclusive and substitute forms of AGO, and the Separate Management Scheme, are entitled to an early retirement pension if they reach at least 64 years of age and a minimum contribution period of 38 years by 31 December 2022.
The right to an early retirement pension accrued by 31 December 2022 may be claimed after that date to obtain the pension, without prejudice to the time required for the opening of the “window.” The 64-year age requirement is not adjusted for increases in life expectancy.
The amendments made by the 2022 Budget Law coordinate the previous rules governing the “Quota 100” pension with the new pension requirements to be accrued by 2022, and refer to:
For pension benefit commencement purposes, the provisions of Article 14, paragraphs 5 and 6 of Decree Law no. 4/2019 apply. They provide different rules on the achievement of the right to the pension starting date depending on the public or private employer and the Social Security Management under which the pension is paid.
The pension for workers employed by employers other than public administrations and self-employed workers will start three months after the date on which the requirements are met. The pension starting date cannot be earlier than 1 May 2022, if the pension is paid by a Fund other than the exclusive AGO, or 2 April 2022, if the AGO Fund pays the entire pension.
INPS stated that when accruing pension rights, the periods subject to contribution redemption must be considered in their original time position and their legal effects must be treated as if they were acquired at the time of the person’s original insurance position.
Any contribution paid or credited for the insured person can be assessed to meet the contribution requirement of at least 38 years. Workers who meet the requirements, for the “Quota 100” pension, between 2019 and 2021 or by 2022, for the “Quota 102” pension, may receive their pension at any time, even after the above dates, if the conditions are met.
In note no. 530 of 21 March 2022, the National Labour Inspectorate (“INL“) has provided some clarifications on extra-curricular internships, particularly the new provisions introduced by Law no. 234/2021 ( “Budget Law 2022“).
Following the provisions of paragraph 720 of Art. 1 of the Budget Law, the INL states that the internship is “an educational path that alternates between study and work, for guidance and vocational training, to improve the match between labour supply and demand. If it is functional to achieving a formally recognised qualification, the internship is defined as curricular.”
Guidelines that Government and the Regions must follow within 180 days from the entry into force of the Budget Law 2022, for drafting and disseminating a new shared agreement on extra-curricular internships, are listed below:
In addition to future provisions, the Budget Law has includes several principles that have been in force since its entry into force: