Harassment: the employer who does not stop a harmful act is liable (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, January 2022)

In its ruling no. 35061 of 17 November 2021, the Court of Cassation ruled on the employer’s liability if an employee harasses a colleague.

The facts of the case saw the Court of Appeal of Rome reform the Court of Rome ruling and uphold the claim brought by an employee of the Ministry of Foreign Affairs and International Cooperation working at the Italian Cultural Institute in Chicago, seeking compensation for damages for harassment against the employer and the Institute director.

The local Court disagreed with the first ruling’s assessment, where the evidence of harassment conduct did not emerge from witness statements.

There was direct testimony about the harassment suffered by the appellant employee, that the director asked her “to make continuous corrections of the texts she had drafted and obliged her to wait for a long time behind the door of her office. She often imposed tasks taking many hours of overtime and criticised her work with expressions such as ‘wretch’, ‘idiot’. She also said that [the employee’s] work ‘sucked’ in front of her colleagues and assigned her the task of opening the office, replacing absent colleagues and carry out disqualifying tasks. The director presented [the employee] externally as an ‘assistant’ and did not use her superior qualification (‘consular agent’).”

These circumstances were confirmed by further witnesses, which added that the director denied the employee the required leave, even though she had accumulated many overtime hours, and assigned interns to tasks for which she was responsible, often using her as a switchboard operator.

The Supreme Court noted that the conduct described was “a set of repeated conduct clearly aimed at belittling and downgrading the employee personality outside and inside the working environment, make it intolerable and causing her to be dismissed.”

Based on these circumstances, the Court of Appeal held that the Ministry, the employer, was liable for the harassment perpetrated against the employee and that this liability applied to the Institute director, as the author of the conduct.

In confirming the local Court findings, the court-appointed expert confirmed that the employer’s conduct had caused the employee biological damage, consisting of “adjustment disorder, in a person with dependent personality disorder with avoidance traits”, resulting in permanent disability of four percent and temporary partial disability of 25 per cent for 60 days.

In the case in question, the appeal Court positively verified the violation of contractual obligations and the employee’s personal rights of constitutional importance. This included the right to dignity in the workplace (Article 2 of the Italian Constitution) and the right to health (Article 32 of the Italian Constitution). It was confirmed that the Institute director conduct was intentional, which is necessary for the harassment definition.

In the second instance proceedings, the existence of a series of repeated conduct “clearly aimed at belittling and downgrading the employee personality outside and inside the working environment, making it intolerable and cause her dismissal”, was confirmed.

In her appeal against the second instance ruling, the director claimed that the appeal Court “violated the case-law principles on harassment, by listing a series of behaviours committed against the employee without verifying the offence’s subjective profile or that they were accompanied by an intention to marginalise, harass or harm the employee.”

However, for the Supreme Court, this appeal was inadmissible. It ignored the positive finding, contained in the ruling under appeal, of the intentional nature of the director’s conduct aimed at “belittling and downgrading” the employee personality and “making the working environment intolerable for her.”

In her appeal, the director argued that in this case, the aetiological link between the conduct and the biological damage had not been proved. It was stated that the court-appointed expert said that the employee’s personality was characterised by a “dependent” disorder with “avoidance” traits, which had contributed to “making her structurally fragile and vulnerable to stressful events. In its conclusions it stated that the work event was a contributing factor along with personality characteristics.”

This argument was considered unfounded. According to case law, “in case of concurrence between human causality and natural contributing factor, the person responsible for the offence is liable for everything.” “A comparison of the degree of aetiological incidence of several causes can be established only among a plurality of culpable human behaviours.”

The Supreme Court pointed out that when an injured person is more vulnerable than others of the same age and sex due to their subjective condition, “this circumstance does not affect either the causal relationship, or the culpability nor the payment of damages.”

The aetiological relationship between the harassment and the injury to the right to health is verified even when the conduct constitutes only a contributing cause and has operated on a pre-existing psychological background, under art. 41 of the Italian criminal code, which states that “the combination of pre-existing or simultaneous or supervening causes […] does not exclude the causal relationship between the action or omission and the event.”

Finally, the employer’s cross-appeal was rejected. The Court of Cassation pointed out that case law has repeatedly determined how a series of persecutory behaviours with vexatious intentions constituting harassment can be directly perpetrated by the employer or one of its representatives or by other employees, subject to its management power.  In this case, “the fact that the harassment originated from another employee who is in a position of hierarchical superiority over the victim is not sufficient to exclude the employer’s liability where it remained culpably inactive in removing the harmful act.”

Source: Sintesi

COVID-19 parental leave: INPS operating instructions

In circular no. 189/2021, INPS has provided operating instructions on the new “SARS CoV-2 parental leave” provided for by Article 9, Decree-Law no. 146/2021, which can be taken by parents who are private-sector employees, working parents who are exclusively registered with the Separate Management Scheme and self-employed parents registered with INPS.

The leave under management can be taken by either parents, but not on the same days, for:

  • periods of SARS CoV-2 infection;
  • periods of quarantine from contact, or
  • periods of teaching or educational activity suspension

the presence of a cohabiting child under 14 years of age.

For the abstention periods, an indemnity equal to half of the salary or income is paid, depending on the applicant parent working category, covered by imputed contributions. Only working days within the requested leave can be compensated.

Parents of children aged 14 -16 can take leave from work without pay or allowance, or imputed contribution, without being dismissed or losing their job.  Applications must be submitted only to employers and not to INPS.


Leave can be taken by working parents who are foster parents or foster carers. The circular summarises the situations of compatibility/incompatibility between the leave and other institutions, providing instructions for event management in the UniEmens flow.

Use of leave

Leave can be taken on a daily or hourly basis and the following requirements must be met:

  • The parent must have an existing employment relationship. If the employment relationship is terminated or suspended while the leave is being taken, the right to take it is lost, and the days following the termination or suspension cannot be compensated. Parents must inform INPS of the change in the employment relationship;
  • the child for whom the leave is taken must be under the age of 14. When the child reaches 14 years of age, leave can no longer be taken;
  • The parent and child must be cohabiting throughout the leave period. Cohabitation exists when the child has their registered residence in the same house as the applicant parent. If the parent and child are registered residents in two different homes, the leave cannot be taken, as the factual situation is irrelevant. In case of child custody or placement, cohabitation is inferred from the custody or placement order to the worker requesting the leave;
  • one of the following conditions must exist for the child for whom the leave is taken:
    • Infection with SARS CoV-2, as certified/attested by the general practitioner, a paediatrician, or by order of the relevant local health authority. All the above documents must specify the child’s name and measure’s duration;
    • quarantine due to contact with the child (wherever it may have occurred), imposed by order of the Prevention Department of the relevant Local Health Authority;
    • suspension of in-attendance teaching or educational activities, ordered by a measure adopted at national or local level or individual school organisations, containing the suspension duration.

Leave can be taken for children with disabilities in a serious situation under article 3, paragraph 3, Law 104/1992, and enrolled in schools at every level or in daycare centres even if the child is older than 14. It is irrelevant if they live with the parent taking the leave, the other requirements remain unchanged.

Conversion of parental leave periods

Periods or extensions of parental leave taken from the 2021/2022 school year until 21 October 2021 may be converted, on application, to “SARS CoV-2 Parental Leave” and shall not be counted and compensated as parental leave.

At the person’s request, periods or extensions of parental leave taken from 22 October 2021 and until the issue of the telematic application procedure for the new “SARS CoV-2 Parental Leave” may be converted. 

The employed parent may submit the new application without sending a formal cancellation notice of the previously submitted application for parental leave or its extension.

Employees with advance allowance payment by their employer must promptly notify their employer of submitting an INPS application. This is to pay the allowance of half of the salary instead of the standard 30 per cent and allow the employer to adjust the UniEmens flows.


Inland Revenue: conditions to exempt expenses incurred by the employee for remote work

In its answer to question no. 798 of 3 December 2021, the Inland Revenue has examined the case presented by an employer wishing to reimburse its employees the costs incurred for the performance of remote work.

Facts of the case

To facilitate its digital teaching transition, the requesting employer (a school) wanted to reimburse its staff for any documented and paid-in-advance expenses incurred to carry out teaching.

Such expenses included IT equipment, paper, toner and internet connection, and their reimbursement will be subject to a request by the entitled parties and not exceed a maximum of € 520 per applicant.

The answer to the question shows how “to determine the maximum reimbursement to be paid to its employees, the applicant has developed objective and analytical criteria to determine the share of costs saved by the employer and incurred by the employee for each type of expenditure.”

This method to determine the cost is based, partly on statistical data deriving from market research (for example, the quantification of the average useful life of IT devices and the average costs for the consumption of paper and network connection) and, collection of data concerning the hours spent by staff in distance teaching.

The all-inclusive principle of employee income

As for the taxation of these refunds, the Inland Revenue considers the sector legislation, under art. 51 of Presidential Decree no. 917 of 22 December 1986 no. 917 (“TUIR”).

This provision states that “general sums and, for whatever reason received during the tax period, including donations, as part of the employment relationship, constitute employment income. The general sums and values paid by the employer by the 12th January for the tax period following the one to which is referred, are considered to have been received during the tax period.”

This provision essentially rules on the “all-inclusive principle” of employment income, according to which “cash emoluments and values corresponding to goods, services and works offered by the employer to its employees constitute taxable income and are included in the calculation of employment income.”

The Inland Revenue observed – that “all sums that the employer pays to the employee, including as reimbursement of expenses, constitute employment income.”

The Inland Revenue added that reimbursements of expenses other than those incurred to produce the employer’s income, when advanced by the employee (for example, for the purchase of capital goods of low value, such as paper for the photocopier or printer, batteries for the calculator) might be excluded from taxation.

This approach is explained by the consolidated practice of tax authorities, particularly Resolutions 9 September 2003 no. 178/E and 7 December 2007, no. 357/E.

Methods of quantifying the reimbursement of the expenses

Institute practice is that expenses incurred by the employee and reimbursed by the employer in a lump sum are excluded from the taxable amount if the legislature has provided a criterion for calculating the portion which may be excluded from taxation. This is because it is used in the employer’s interest.

The Inland Revenue stated that under Resolution of 20 June 2017, no. 74/E, “if the legislator has not provided a criterion for calculating the portion excluded from taxation, the costs incurred by the employee in the employer’s interest must be identified based on objective elements and documentary evidence, to avoid that the relevant reimbursement contributes to the employment income.”

In this case, it emerged that the reimbursement granted by the school to employees to use IT devices is based on “objective parameters to determine costs saved by the institution that were incurred by the employee in the performance of their work.”

Because of the analytical method to calculate the amounts, the Inland Revenue has held that the amounts paid by the school to reimburse employees for costs incurred in the employer’s interest were not taxable for IRPEF purposes.

Deprivation of duties gives rise to the right to compensation for pecuniary and professional damages (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, December 2021)

In its ruling no. 31182 of 2 November 2021, the Court of Cassation ruled on compensation due to deprivation of duties assigned to the employee, in violation of Art. 2013 of the Italian Civil Code.

The facts of the case saw the Court of Rome partially uphold the claims brought by an employee, who requested that his employer be ordered to pay compensation for the damage to his career by depriving him of all tasks, which determined “a serious prejudice of the free expression of his personality in the workplace”, causing the employee “a considerable reduction in the opportunities for professional growth.”

The Court of First Instance decision was overturned by the District Court, which rejected the worker’s claim in its entirety. The worker appealed to the Court of Cassation to protect his right to compensation for damage.

The Court of Cassation criticised the Trial Court conclusions. According to the Supreme Court, there was a failure to examine decisive facts in the second instance, “failing to consider the results of previous litigation” relating to the period of employment prior to the secondment subsequently ordered and under examination. “On the basis of which it emerged, with final judgement, that the applicant was not only demoted, but totally deprived of the attribution of any work.” It failed to consider that “the conduct was part of a long and manifestly unlawful management of the employment relationship, the continuation of which was the subject of assessment in these proceedings”, clearly pointing out “the substantial situation of inertia at work in which the applicant was placed.”

The Court of Cassation stated that according to art. 2103 of the Italian Civil Code, paragraph 1 – in the text version prior to the amendments set out in Legislative Decree 15 June 2015, no. 81 – “the employee must be assigned to the duties for which he was hired […] or duties equivalent to those last carried out.” This rule is violated, having regard to the worker’s freedom and dignity in the places where he works and to the system of protection of his professional background, when the employee is assigned to inferior tasks.

The Court observed that this constitutes a “protection traditionally understood as mandatory, in respect of which Art. 2103 Civil Code, paragraph 2, determines the nullity of any contrary agreement. The assignment to inferior duties is potentially capable of producing a plurality of harmful financial and non-financial consequences.”

On this point, the Supreme Court considers how the employer’s failure to comply with its obligations may entail “damage from loss of professional expertise of a financial nature which may consist either in the impoverishment of the employee’s skills, failure to acquire greater knowledge, and prejudice suffered due to the loss of opportunity, i.e. further earning possibilities or employment potential.”

The violation of Art. 2103 of the Italian Civil Code can impair “that set of skills and attitudes defined by the term professional expertise, which is certainly a financially assessable asset, since it is one of the main parameters for determining the value of an employee on the labour market.” According to the Court, the change in peius of the tasks, is potentially capable of causing damage to intangible assets, even beyond health. In the employment relationship regulation, many provisions ensure enhanced worker protection by recognising rights subject to constitutional protection, “which include a non-financial damage payable whenever they are violated, exceeding the limit of tolerable sacrifices, rights of the worker subject to special protection at the highest level.”

The Court of Cassation’s ruling affirms that the denial or hindering of the performance of duties, like professional demotion, entails the infringement of the fundamental right to the free expression of the worker’s personality in the workplace, causing a prejudice that affects the professional and social life of the person concerned. Such an injury takes on an “undoubted financial nature”, which makes the injury “susceptible to compensation and assessment, even on an equitable basis.”

If art. 2103 of the Italian Civil Code’s wording explicitly recognises the worker’s right to carry out the duties for which he has been recruited or equivalent to the last duties carried out, the worker’s consequent right “not to be left in a condition of forced inactivity and without assignment of duties, even in the absence of consequences on remuneration, must be considered to exist. The worker has the duty and right to work, to which the employer has the corresponding obligation to assign. This is because work is not only a means of earning money, but a way of expressing the professional value and dignity of each citizen.”

In overturning the Court of Appeal’s decision, the Supreme Court pointed out that, even in the absence of a persecutory intent, the conduct of an employer who leaves the employee in a condition of inactivity constitutes a violation of art. 2103 of the Italian Civil Code, and infringes the right to work, understood as “a means of expressing the personality of each citizen, and the employee professional expertise.”

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