Revirement of the High Court on when the prescription to bring claims against the employers starts to run
In Italy, the economic rights of the employees are subject to prescription by the expiry of a 5 years period of time.
Traditionally, the beginning of the prescription for employment claims depends on the protection granted to the employees in the event of unlawful dismissal.
According to those judgments, in case of dismissal declared unlawful, where a dismissed employee is covered by economic protection and the right to reinstatement is lacking, it was excluded that the prescription could run during the relationship because of the psychological subjection in which the employees find themselves. Indeed, in such cases, in the absence of a protection guaranteeing the reinstatement of the employment relationship, during the latter, the employees would hardly bring claims against the employer due to the fear of being dismissed. Therefore, in those cases it was undisputed that during the employment relationship the prescription was “frozen” and began to run only upon termination.
Until 2012, in the companies with more than 15 employees, the protection rule against unlawful dismissal was reinstatement for any flaw of the dismissal. Since this protection was resistant, the common belief was that the employees are unrestricted to claim their credits even while they were still employed by the employer and, therefore, it was widely recognized that during the employment relationship the prescription could start to run and therefore elapse after 5-years period of time.
This all changed following the new protection rules introduced against unlawful dismissals in 2012 and 2015. In fact, as a result of those reforms, reinstatement protection for employees of large companies is no longer automatic. Only for certain cases of more serious violations, the employees can obtain reinstatement protection. In other cases, the legislator has provided for economic protection only.
As a result of these changes, several courts and academics have pointed out that the variety of the flaws and related protections does not allow the employee to be sure to obtain reinstatement in court in the case of claim bring and then followed by dismissal. It was also highlighted that the new regulation reintroduces that situation of psychological oppression against the employer persuading the employees not to exercise their rights for fear of being dismissed and without having a protection capable to restoring the employment relationship. Hence, the belief that, for employees of larger companies the prescription could run and elapse during the course of the relationship was questioned.
Such viewpoints were supported in the recent judgment of the Court of Cassation no. 26246 of September 6, 2022, according to which, as a result of the aforementioned reforms, the prescription no longer runs in the course of the employment relationship, but it begins to run – also for employees of the companies with more than 15 employees – from its termination.
As a result of this ruling, employers now are exposed to the claims for employees’ rights that have arisen since July 2007 (5 years prior to the entry into force of the 2012 law) and that can be enforced after the termination of the employment relationship for an overall period of 5 years.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Carlotta Vertuani.