The Labor Court of Milan and the Italian Supreme Court issued two decisions (No. 3370/2016 and 618/2017) interpreting the updated Section 2013 of the Italian Civil Code, concerning the “repêchage obligation.”

In particular, before dismissing an employee for objectively justified reasons (e.g., abolition of the department or functions in the company), the employer has the obligation to evaluate whether the employee could be employed in another role in the company.  In this respect, the Italian reform law, so-called “Jobs Act,” allows employers to reclassify staff categories, as well as introduce mobility within and among staff levels. This means the criterion of equivalent tasks has been replaced by the principle of horizontal mobility with the possibility to give job tasks attributable to the same level and staff category of the latest functions performed by the employee.  Therefore, the employer may assign to employees any functions included in the classification system of the relevant collective bargaining agreement within the context of the same contractual and pay level.

Before the Jobs Act, the repêchage obligation required assigning corresponding functions within the same professional level. Now, with the new interpretation of the horizontal mobility, the Court stated the burden of proof rests on the employer, who must give evidence of the absence of positions attributable to the same level and same staff category of the latest job tasks actually carried out. The employer must keep in mind that the classifications of collective bargaining agreements include a wide range of tasks for the same staff and pay level.  Thus, the employer must also offer training to the employee in case of reemployment under the rules of horizontal mobility.

The Court’s decision sets out, for the time being, the limits for employers who intend to dismiss an employee for objectively justified reasons, with respect to the new interpretation of the “repêchage obligation.”

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