Internal company selection procedures binding for the employer (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, February 2021)

19 February 2021

The Supreme Court of Cassation, by Order no. 28141 of 14 December 2020, stated that a selection procedure used by an employer to fill professional positions constituting career advancement represents a “contractual offer” to potentially interested recipients.

As part of private employment relationships, the employer must manage the selection procedure and identify the employees deserving the promotion by complying with the rules set out in the call for applications. This is under the principles of fairness and good faith underlying any contractual obligation, including employment relationships.

The facts of the case were that a healthcare management company launched an internal selection procedure for the head nurse position assignment. The selection procedure had two distinct phases – one concerning the examination of applications and related curricula; the other, consisting of an aptitude interview with the candidates carried out by a specialised third-party company.

An employee who had taken part in the call for applications took legal action to obtain a ruling that the internal selection procedure for the position’s award was unlawful. She requested that the employer be ordered to pay compensation for financial loss in the form of differences in salary due, recalculated based on the resulting classification level, and damage to her professionalism.

The Court of Appeal of Caltanissetta, overturned the first instance decision, and rejected the request made by the employee excluded by the aptitude test. It pointed out that she was unsuitable and lacked the necessary requirements for the company selection procedure. It was found that, based on the correct application of the selection procedure set out in the notice, the employer had legitimately awarded the head nurse position to another candidate.

The Court of Cassation confirmed the decision of the local court, pointing out that the procedure notice is correctly exercised if the employer has managed it correctly, in good faith, and following the predetermined selection procedure.

The Court stated that the recruitment procedure notice, the notice of a promotion to a higher position, or the notice for recognising remuneration and benefits for personnel were technically equivalent to an offer to the public. This gives rise to an obligation towards the employees who are the recipients of the selection procedure.

If the notice contains the essential elements of the employment contract for which it is intended, it constitutes an offer to the public under Article 1336 of the Civil Code. The code states that the offer to the public is valid as a contractual proposal unless the circumstances or custom dictate otherwise.

Such an offer binds employers and once the procedure has been initiated, they cannot modify the content outlined in the procedure notice to the detriment of those to whom the offer was addressed.

On this basis, which was emphasised on several occasions by the case law on the subject, the Supreme Court stated that this principle applied to this case and rejected the employee’s claims.

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