With decision No. 16719 dated June 14, 2021, the Supreme Court revisited the previous case law position on the matter.
By means of the aforesaid decision, the Supreme Court stated that - in the event that the employer executed a transfer of business as a going concern: which was subsequently declared unlawful and refused, without justification, to restore the employment relationship with the transferred employee - the employer is not allowed to deduct from the amounts due to said employee, the amounts that the transferred employee received, in the same period, also by way of remuneration, for the activity carried out in favor of the transferee employer. The latter, in fact, is no longer the transferred employee’s employer once the transfer of business as a going concerned has declared unlawful.
More precisely, the Supreme Court ruled that if the employer executed a transfer of a portion of business as a going concern, which subsequently was declared unlawful, and refused the restoration of the employment relationship without justification, the employer is not allowed to deduct from the amounts due to the transferred employee, the sums that the latter has received, in the same period, also by way of remuneration, for the activity rendered in favor of the transferee employer which is no longer such, once - as in the present hypothesis - the non-enforceability of the transfer to the employee has been judicially declared. This is because, in this case, the transferred employee is entitled to receive the sums - due to him by the transferring employer - as remuneration and not as compensation. For this reason, the deductibility, from the amounts owed by the transferring employer, of the amount received in the meantime by the transferred employee is not applicable, since, in fact, it has been excluded that the employee's request for payment have nature of damage compensation.
Avv. Guido Brocchieri
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