CBA Latest News (27 Nov 2015)

Date: Nov 2015

Professional deskilling is allowed if the employee refuses the transfer to another work place - Civil Court of Cassation, Labour section, of 06.10.2015 no. 19930

With the recent decision no. 19930 of 06.10.2015, the Italian Civil Court of Cassation (the Court) has confirmed its position according to which the professional deskilling agreement (patto di demansionamento) signed by the employee shall be considered lawful if it represents the only solution to avoid the termination of the employment relationship.

In the case at hand, the employee had initially rejected the transfer - due to the closing down of his current office - to another work place, located more than 150 kilometers away from the previous one.

As an alternative to the dismissal of the employee (which would have been an inevitable consequence of the refusal of said transfer), he entered into an agreement with the employer, providing his professional deskilling (demansionamento). Subsequently, the employee however decided to sue the employer before court in order to claim damages for the occurred deskilling.

The Court has considered the right to maintain the work place (diritto alla sede) as “negotiable” rectius exchangeable with the right to maintain one’s professional degree (diritto alla mansione), by recognizing the validity of the deskilling agreement although in derogation from Article 2103 of the Civil Code, thereby focusing the attention upon the contractual parties’ free choice expressed on the matter.

The decision at hand deserves to be reported since, although it was passed on the ground of the legislative framework in force before Legislative Decree no. 81/2015 became effective, it shows a substantial continuity with the latter.

Indeed, it is useful to remind that the new Article 2103 of the Civil Code allows the employer to unilaterally deskill the employee - provided a written agreement is reached on the matter, being the deskilling otherwise void - in following alternative cases:

  • a) modification of the company’s organizational structures, which affects the employee’s job position. In such event the employee, according to the legal professional degree he belongs to, (executive, middle manager, white collar employee, blue-collar employee) can be assigned to working activities pertaining to a lower professional degree;
  • b) the possibility is provided under the applicable collective bargaining agreement;
  • c) individual negotiation, with the assistance of the unions, if following conditions are met:
    • employee’s interest to keep up the employment relationship;
    • acquisition of different professional skills or
    • improvement of the quality of life conditions.

The combined examination of the recent judgments and the latest reforms imply an increased flexibility in favour of the employer, undermining the dogma of the impossibility to derogate from Article 2103 of the Civil Code.

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