On September 26th, 2018, the Italian Constitutional Court declared the unlawfulness of Legislative Decree no. 23/2015 (better known as “Jobs Act”), in the part where it provides an “increasing protection” system of penalties for the case of illegitimate dismissal of employees hired after March 7th 2018, based on the their specific length of service within the company.
According to the mentioned “increasing protection” system, dismissal for just cause or justified reason held as unfounded, could be sanctioned with an indemnity equal to 2 monthly salary for each employee’s year of service within the company (in any case between a minimum of 12 and a maximum of 24 monthly salary).
The mentioned mechanism had no precedents in the Italian Legislation (the length of service principle did not apply for employees hired before March 7th 2015) and had the merit of introducing a standardized and clarifying method of calculation of the indemnity due to the dismissed employee, for the case of unlawful dismissal.
Afterwards, just a few months ago, the so – called “Dignity Decree” (whose conversion Law no. 96/2018 entered into force on August 12, 2018) increased the abovementioned framework of penalties, now ranging between a minimum of 6 and a maximum of 36 monthly salary, always to be calculated on the basis of the employee’s length of service.
As abovementioned, on the specific method of calculation of the indemnity, Italian Constitutional Court has recently intervened.
Right now, we are still awaiting for the publishing of the ruling motivation, that will be filed in the upcoming weeks.
Anyway, the Court press release has already clarified that the grounds of the judgment of constitutional illegitimacy should be found in the contrast between the “gradual protection” system and the principles of reasonableness and equality, in addition to the right and protection to work pursuant to Articles 4 and 35 of the Constitution.
According to the Court principle, in fact, the method of calculation of the indemnities for illegitimate dismissal on the basis of employee’s length of service, ends up causing a significant difference in treatment between employees hired before and after March 7th 2015.