Jobs Act, the Constitutional Court: “The regulation on collective dismissals is not illegitimate”

MILAN – The discipline of collective layoffs of the Jobs Act is legitimate: this was established by the Constitutional Court, which declared “the questions of constitutional legitimacy of articles 3, first paragraph, and 10 of the legislative decree of 4 March 2015, no. 23, which, in implementation of the delegation law No. 183 of 2014 (so-called Jobs Act), introduced the permanent employment contract with increasing protections in relation to length of service”.

Also considering the parliamentary work and the overall aim pursued by the Jobs Act, the Consulta held that the reference contained in the delegation law to “economic layoffs” concerned both individual ones for justified objective reasons and collective ones.

In particular, the Court of Appeal of Naples had criticized the regulation of collective dismissals as regards the consequences of the violation of the criteria for choosing redundant workers. Indemnity protection has been provided for, compensating for the damage suffered by the worker, but no longer reinstatement protection in the workplace, in symmetry with the hypothesis of dismissal for justified objective reasons.

The enabling law had, in fact, excluded, for the “economic dismissals” of workers hired with contracts with increasing protections (therefore starting from 7 March 2015), the possibility of the worker’s reinstatement in the workplace, and had provided for compensation economic, limiting the right to reinstatement to null and discriminatory dismissals and to specific cases of unjustified disciplinary dismissal.

The Court, also considering the parliamentary work and the overall aim pursued by the Jobs Act, therefore considered that the reference contained in the delegation law to “economic layoffs” concerned both individual ones for justified objective reasons and collective ones. It therefore ruled out that, from this point of view, there had been – as the Court of Appeal claimed – a violation of the directive criteria of the delegation law.

Furthermore, the Court also deemed the complaint of violation of the principle of equality unfounded, comparing “elderly” workers (those hired until 7 March 2015), who retain the more favorable previous discipline and therefore reinstatement in the workplace, and “young” workers (those hired after that date), to whom the new regulations of the Jobs Act apply. The temporal reference to the date of hiring allows situations to be differentiated: the new regulations on dismissals – explains the Council in the press release with which gave notice of this sentence, n. 7 of 2024 – is aimed at encouraging employment and overcoming precariousness and is therefore only foreseen for “young” workers. The legislator was not required, on a constitutional level, to make this new regulation applicable also to those who were already in service.

Finally, the Court deemed the identity protection to be inadequate. Currently, a worker illegitimately dismissed as a result of a staff reduction procedure is entitled to an indemnity, not subject to social security contributions, of an amount equal to the number of monthly payments of the last reference salary for the calculation of severance pay, determined by the judge based on the criteria indicated by this Court in sentence no. 194 of 2018, in any case not less than six and not more than thirty-six monthly payments.

The Court also further signaled to the legislator that “the matter, the result of stratified regulatory interventions, can only be reviewed in overall terms, which concern both the distinctive criteria between the regimes applicable to the different employers and the dissuasive function of the remedies provided for the various cases”.