In its ruling no. 25901 of 23 September 2021, the Court of Cassation dealt with the case of a dismissal of a female civil servant after disciplinary proceedings were reopened.

The case involved a female municipal employee who was dismissed on disciplinary grounds for having “repeatedly slandered and damaged the honour and dignity of the Municipal Police Chief and other superiors. This was based unfounded accusations contained in a complaint for sexual violence lodged against the Chief and a superior and for assault and threats against another superior, which was subsequently dismissed by the local court preliminary investigation judge.”

Given these circumstances, the employee was subjected to disciplinary dismissal, under art. 3, paragraph 7, letter F) of the Local government sector NCLA, for cases of “recidivism in the two-year period […] of aggressive, hostile and denigrating acts and behaviour and forms of moral violence or psychological persecution towards a colleague to cause them damage in the work environment or exclude them from the work environment.”

This sanction, challenged in court, was first annulled by the Court of Teramo on the grounds that a previous dismissal had already been imposed for the same facts and was still sub iudice, with mixed results. The local Court of Appeal confirmed the annulment, not considering that the provisions of art. 55-ter, paragraph 3, Legislative Decree 165/2001 could be applied to this case.

This provision states in detail that “if the disciplinary proceedings end with the case’s dismissal and criminal proceedings end with an irrevocable conviction, the office responsible for disciplinary proceedings shall reopen the disciplinary proceedings to adjust the final decisions to the outcome of the criminal proceedings. Disciplinary proceedings can be reopened if the irrevocable conviction shows that the fact chargeable to the employee in the disciplinary proceedings entails the dismissal while another sanction was applied instead.”

The Municipality, having become aware of the fact that, because of the employee’s unfounded complaints, a criminal trial for slander had taken place, which had ended with a conviction against her, imposed a new dismissal cause under art. 3, paragraph 8, letter. E) of the NCLA, concerning the case of a “final conviction for an offence which, although not directly related to the employment relationship, does not allow continuation because of its seriousness.”

The second dismissal, once challenged, was also annulled by the Court of Teramo, with a sentence upheld on Appeal. In the meantime, the original ruling annulling the first dismissal was firstly overturned by the Court of Appeal of L’Aquila, whose ruling was revoked by the Supreme Court, confirming the rejection of the appeal against the first dismissal.

The Supreme Court observed that it is necessary to exclude that the two disciplinary proceedings relate to different offences. “The two disciplinary provisions have specialising elements: the first applies the sanction of dismissal if the conduct constitutes a repetition of other similar offensive or disparaging acts; the second disciplinary case, has as its special feature the element of a final criminal conviction. This does not mean that the core of the conduct […] is the same and consists of denigrating behaviour towards superiors.”

The Court of Cassation stated that the conduct is always the same and the second dismissal cannot be said to relate to a different fact.

The issue arises of whether it is possible to reopen the disciplinary proceedings if a criminal conviction occurs which was not considered in the previous disciplinary procedure conducted regardless of the pending criminal case, for an act prosecuted and potentially constituting an offence.

The Court observed that the disciplinary procedure “maintains its autonomy and may be affected by the criminal judgement if the disciplinary action is not yet defined or only if […] the finality of the criminal investigation is placed […] as a basis for the obligations to reopen it.”

It is pointed out that, in the field of employment relationships, it is a well-established principle that disciplinary power cannot be reiterated, for the same fact once it has already been exercised by applying a sanction. This is the case even if the first sanction is less than the sanction subsequently found to be applicable based on additional circumstances.

Even though disciplinary proceedings were independent from criminal proceedings, the legislator provided for cases where the criminal case differed from the determinations made in the disciplinary proceedings but were still bound to have effects although formally closed.

This is the case, in favour of the accused, if the criminal proceedings end with an irrevocable acquittal which recognises that the there is no case to answer against the employee, or the fact does not constitute a criminal offence, or the employee did not commit the offence. In such cases, the disciplinary proceedings must be reopened to adjust their outcome to the judicial findings.

Starting a second disciplinary proceeding cannot be considered admissible, for the same fact, except in the cases expressly allowed by Art. 55-ter of Legislative Decree no. 165/2001.

Reopening disciplinary proceedings which have been closed with a precautionary sanction, for facts that lead to dismissal which have been ascertained in criminal proceedings, is expressly regulated because of its divergence, to protect the public interest, from the general principle of the “termination” of disciplinary power.

Given the above, the Court determined that the Municipality in question “could not have opened a new disciplinary procedure, for the same facts, because the dismissal was (provisionally) annulled by the first instance ruling. It could not have done so even if that annulment became final, because that case did not allow for possible further disciplinary power for the same fact. At that point, the judgement on the existing employment and the inability of the disciplinary action to affect it, prevailed.”

In its answer to question no. 789 of 24 November 2021, the Inland Revenue clarified that those who meet the requirements provided for by Decree Law no. 34/2019, can benefit from the favourable tax regime for repatriated workers for a further five tax periods if they have been registered with AIRE.

Question subject

The applicant taxpayer is an Italian citizen with a university degree who:

• moved abroad to attend a Master’s degree course in September 2009, obtaining her degree on 30 September 2011;
• after the study period, she remained abroad until February 2013 to carry out two internships, the last of which was transformed into an open-ended contract;
• she was registered with the Register of Italians resident abroad (“AIRE”) from 8 November 2012 to 13 March 2013;
• she returned to Italy in March 2013 to work for an employer, benefiting from the “expat workers” regime under Law no. 238/2010;
• she exercised the option referred to in Article 16, paragraph 4, of Legislative Decree no. 147/2015 to take advantage of the special regime for “repatriated” workers until 31 December 2020.

The worker, who is a mother of two minors, has purchased a property in 2019 where she lives.

The Applicant considered that she met the requirements set forth in Article 5, paragraph 2-bis, letter a), of Decree Law no. 34/2019 for the benefit extension outlined in article 16 of Legislative Decree no. 147/2015 for a further five tax periods. According to her, AIRE registration for a period of less than two tax periods (i) was irrelevant (ii) the “AIRE amnesty”, under article 16, paragraph 5-ter, of Legislative Decree no. 147/2015, introduced by the Growth Decree, should be applied.

The favourable tax regime regulatory evolution

In its reply, the Inland Revenue explained how Article 5, paragraph 1 of the Decree has (i) modified the requirements relating to the tax benefit scope, (ii) increased the taxable income reduction percentage and (iii) extended the tax benefit period for a further five years, if conditions were met.

These amendments, applicable to persons transferring their tax residence in the Country as of 30 April 2019, were clarified in Circular no. 33/E of 28 December 2020.

The circular stated that, through the amendments made by the Growth Decree to the legislation, the legislator introduced a temporal extension of the tax benefit to a further five tax periods, with taxation at a rate of 50 per cent of taxable income, if one of the requirements were met such as:

• have at least one minor, including those in pre-adoptive foster care;
• purchase of a residential property unit in Italy directly by the worker or their spouse, cohabiting partner or children, including jointly owned units. This last case must take place “after the transfer to Italy or in the 12 months preceding the transfer.”

The tax authority stated that Article 1, paragraph 50, of Law no. 178/2020 (“Budget Law 2021”) inserted in the above Article 5 of the Growth Decree, paragraph 2-bis, to allow the extension for a further five years of the tax benefit for repatriated workers including those “who have been registered with AIRE or are EU Member State citizens who have transferred their residence before 2020 and who, as of 31 December 2019, are beneficiaries of the regime under Article 16 of Legislative Decree 14 September 2015, no. 147.”

The 2021 Budget Law established that the following individuals could benefit from the extension, by exercising a specific option:

1. being registered with AIRE or are EU Member State citizens during their stay abroad.
2. transferring their tax residence to Italy before 2020;
3. already benefited from the special regime for repatriated workers on 31 December 2019.

This option is completed by paying:

1. 10 per cent of the tax-advantaged employment and self-employment income produced in the tax period preceding the one in which the option is exercised, if at the time of exercising the option the worker meets the following requirements:
   • having a minor, (including those in pre-adoptive foster care), or
   • owning at least a residential property in Italy after the transfer, within the previous 12 months or within 18 months from the date on which the option is exercised;
2. Five per cent of the taxable employment and self-employment income produced in the tax period preceding the one in which the option is exercised, if at that time the employee has at least three minors (including those in pre-adoptive foster care) and becomes the owner of at least a residential property in Italy after the transfer, in the preceding 12 months or within 18 months from the date on which the option is exercised.

If the applicant fails to meet the requirements the additional benefit will be refunded without penalty.

Please note that “provided that they maintain their tax residence in Italy, employees may exercise the option, as for the special regime for repatriated workers, by submitting a written request to the employer, within 30 June of the year following the end of the first five-year period of benefit.”

In view of the legislation, the option in question cannot be exercised by:

1. those who transferred their residence to Italy as of 30 April 2019, due to incompatibility with the Growth Decree regulatory provisions;
2. professional sportsmen.

The option for the tax benefit extension is reserved for those who have acquired Italian tax residence before 30 April 2019, provided that on 31 December 2019 they are beneficiaries of the favourable regime.

The Inland Revenue considers that the option in question may be exercised by “expat workers” who availed themselves of the option under Article 16, paragraph 4, of Legislative Decree no. 147/2015, and have benefited from the special regime for repatriated workers from 2016 or 2017 and until 2020. This is the regime version prior to the Growth Decree amendments. The extension is accessible for those meeting the requirements of Article 2, paragraph 1 of Law no. 238/2010 who benefited from the pre-Growth Decree repatriated workers regime under paragraph 4 of Article 16 of Legislative Decree no. 147/2015.

(i) those who have not been registered with AIRE and (ii) non-EU citizens, even if beneficiaries of the special regime for repatriated workers are excluded from exercising the option.

Applicability to “expat workers”

The Inland Revenue considers that “expat workers” registered with AIRE, who benefited from the special regime for repatriated workers as of 31 December 2019, may exercise the option under Article 1, paragraph 50, of Law no. 176 of 2020 and, have access to the measure provided for by Article 5, paragraph 2-bis, of the Growth Decree.

Given her registration with AIRE during her stay abroad, the tax authority considers that the applicant worker can benefit from the special regime for repatriated workers for a further five tax periods, as she meets the requirements set out in the above article.

Law of 5 November 2021 no. 162, published in the Official Gazette no. 275 of 18 November, has been in force since 3 December 2021. It contains provisions on equal opportunities between men and women in employment. 

The following are the changes introduced by the law under review.

Amendments to the Equal Opportunities Code

The new provision introduces important amendments to the “Equal Opportunities Code” (Legislative Decree no. 198/2006). These include a modification of art. 46, which requires companies with more than 100 employees to draw up a biannual report covering the treatment of men and women in the company. With the changes introduced by this law, the obligation to draw up the biannual report is extended to companies with more than 50 employees. For companies with up to 50 employees, the report submission is voluntary.

This biannual report must then be submitted electronically using the form made available on the Ministry of Labour’s portal. The regional councillor for equality must process the data and transmit the results to the National Labour Inspectorate regional offices, the national councillor for equality, the Ministry of Labour and Social Policies, the Department for Equal Opportunities of the Presidency of the Council of Ministers, the Institute of Statistics and the National Council for Economy and Labour.

The first report must be submitted by 30 June of the year following the year the law entered into force i.e. by 30 June 2022.

The Ministry of Labour and Social Policies in agreement with the Delegated Minister for Equal Opportunities must issue a decree on the biennial report within 60 days from the Law issuance defining:

• “the drafting guidelines of the report which must specify the number of female and male workers employed, the number of female workers who may be pregnant, number of female and male workers who may have been hired during the year, differences between the initial salaries of workers of both genders, contractual classification and function performed by each worker employed, and any other contractual and salary details;
• the obligation to include information and data on selection processes at the recruitment stage, recruitment processes and the procedures used to access professional qualification and management training;
• the report access methods by company employees and trade union representatives, in compliance with the protection of personal data, to benefit from legal protection.”

Failure to submit the biannual report will result in an administrative sanction ranging from €103 to €516, and if the failure extends beyond 12 months, the company’s contribution benefits will be suspended for 12 months.

If the biannual report is untruthful or incomplete, an administrative sanction between €1,000 and €5,000 shall be applied.

Gender equality certification

Law no. 162/2021 introduced the “Gender equality Certification” with effect from 1 January 2022. This certifies the policies and measures adopted by companies to reduce the gap between men and women “for company growth opportunities, equal pay for equal tasks, policies for managing gender differences and maternity protection.”

It will be up to the President of the Council of Ministers to issue Prime Ministerial Decrees to define:

• the minimum parameters to achieve gender equality certification by companies regarding remuneration paid, career progression opportunities and work-life balance;
• The methods for the acquisition and monitoring of data transmitted by employers;
• The Trade Union Representatives (RSA) and the regional equality councillors’ involvement;
• the gender equality certification publication methods.

For 2022, the possession of the gender equality certification guarantees private enterprises an exemption from the payment of social security contributions by the employer, up to € 50 million. The exemption will be determined at a rate not exceeding one per cent and up to € 50,000 annually for each company, recalculated and applied monthly, by decree of the Minister of Labour and Social Policy, in agreement with the Minister of the Economy and Finance and the Minister for Equal Opportunities, to be adopted by 31 January 2022.

Private companies which, on 31 December of the year preceding the reference year, possess the certification, will be awarded a “bonus score” for the evaluation by the authorities, holding national and regional European funds, of project proposals to obtain State co-financing of investments.