Transfer of business
The Supreme Court has confirmed that only a lawful business transfer implies the continuity of an employment relationship which remains unique and unchanged, in its objective elements, only to the extent that the requirements of the laws governing the business transfer (Article 2122 of the Civil Code) - which, by way of derogation from the general principles of assignment of the contract (Article 1406 of the Civil Code), allow the replacement of the assigning contractor without the employee consent - are satisfied (Supreme Court’s decision No. 12622 dated April 20, 2022).
Dismissal - Trial period
The dismissal of an employee by virtue of a trial period clause inserted in an employment contract for an indefinite term, connected with the subsequent execution of a fixed-term contract concerning the same duties, but with a lower salary, constitutes a right abuse. The employee is therefore entitled to claim for damage compensation corresponding to the unpaid salary differences (Milan Court of Appeal’s decision dated February 28, 2022).
Unlawful transfer of an employee
The Supreme Court, ruling on the employee’s transfer, affirmed once again that the employer, in application of the general principles of correctness and good faith, cannot legitimately impose the transfer if there are equivalent ways to satisfy the reasons for the transfer.
The Supreme Court also recalled that the employer, in the absence of a different provision, is not required to comply with any formal obligation related to the transfer communication, nor to provide the employee with an indication of the reasons for such decision, except that the legitimacy of the transfer is contested in court.
In this case, the employer must prove the well-founded reasons that led to the transfer, as the employer cannot simply challenge the employee’s arguments.
In any case, the judicial review of the legitimacy of the employer's decision must also be carried out in light of the general principles of correctness and good faith (Supreme Court’s decision No. 119143 dated July 6, 2021).
Avv. Guido Brocchieri
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