The Constitutional Court rejects the roof of six months for illegitimate layoffs in small businesses. Now we need a reform that guarantees Equi compensation.
A rigid and automatic rule that did not take into account the severity of the facts, nor the economic conditions of the employer. With this motivation, the Constitutional Court has declared the maximum limit of six months unconstitutional for the compensation allowances in cases of illegitimate dismissal in companies with less than 15 employees per production unit, or otherwise 60 in total. A central point of the Jobs Act, in force since 2015, is thus disassembled.
A sentence that reopens the debate on the Jobs Act
The decision comes a few weeks after the outcome of the referendums promoted by the CGIL on work, which on this issue asked for the repeal of the limit. The leader of the CGIL, Maurizio Landini, immediately commented by defining the sentence “consistent with our requests” and relaunching the need to “put work back to the center of politics and society”.
The confederal secretary of the CISL, Mattia Pirulli, welcomed the pronouncement of the court, underlining the urgency of a regulatory reform that fully involves the social partners. The approval also comes from UIL, with Ivana Veronese who underlines the need to go beyond the only compensation and also restore the possibility of reinstatement of the worker.
The legal node: too low and not very dissuasive compensation
According to the Consulta, to provide a fixed roof to indemnify – regardless of the severity of the offense and the circumstances – undermines the very function of the compensation, which should be fair, adequate and dissuasive towards the employer. The contested rule, in fact, set the maximum allowance for each year of service to six months of the last salary, creating a strong imbalance with respect to the compensation provided for larger companies.
The Court underlined how this approach limits the autonomy of the judge in evaluating case by case and preventing a real customization of compensation, in violation of the constitutional principles of equality and effective protection of the worker.
Economic strength cannot depend only on dimensions
Another important step of the sentence concerns the correlation, considered improper, between the economic force of the company and the number of employees. The Court observed that the dimensional parameter – often used in labor law – does not necessarily represent the real financial capacity of a company, especially in an economic context where many small businesses can have wider margins of great realities in crisis.
The Consulta therefore invites the legislator to intervene with a rule that takes into account not only the number of employees, but also of the concrete economic situation of the company.
Political reactions and fears of companies
From the political front, Pd, M5S and Avs they expressed satisfaction, asking the government to immediately incorporate the indication of the Court. “It is proof that the 13 million citizens who signed the referendums were on the right side,” said Maria Cecilia Guerra and Arturo Scotto of the Democratic Party.
The position of Confapi is different, which warns against a possible aggravation of the costs for small and medium -sized enterprises, many of which do not have the necessary resources to face higher compensation. The risk, according to the association, is to discourage indefinite hiring, precisely in an economic phase still uncertain.
Towards a new regulatory season
The sentence actually opens a new phase for Italian labor law. After years in which flexibility had been indicated as a modernization key, the Court now reiterates the centrality of the protection of the worker. Parliament is called to fill the void left by the declared unconstitutional rule, defining new criteria to make compensation proportionate, equivalent and consistent with current economic dynamics.
The challenge, for the legislator, will be to balance the protection of rights with sustainability for the country’s production fabric, where over 90% of companies are made up of reality with less than 50 employees.
