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03.012022

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

in Labour

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.”