"The sentence does not affect the essential content of the 2015 reform". This is the opinion of Pietro Ichino, a labor lawyer and professor of labor law at the University of Milan, a former Pd senator, according to whom the decision of the Consulta "will probably have a limited impact".
The 26 September the Constitutional Court established that determining the amount of compensation due to the worker unjustifiably dismissed solely on the basis of length of service is illegitimate. A sentence which, as expected, has sparked numerous controversies leading the deputy prime minister of Maio to speak of "dismantling the Jobs act".
Professor, can you explain to us what happened yesterday and what are the effects of the Council's ruling?
“The Constitutional Court, with a single majority vote and a labor law member (Giulio Prosperetti) on a mission, has decided to amend the discipline of dismissals introduced with decree no. 23 of 2015.
The decision concerns in particular the compensation to which dismissed workers are entitled, in the event of insufficiency of the reason given by the entrepreneur, which cannot be rigidly predetermined only on the basis of length of service."
And what does this imply?
“That the judges will determine the compensation at their discretion, always within the minimum and maximum established by law, but also taking into account other parameters in addition to seniority. To date it is not yet known which ones, it will be necessary to read the reasons for the sentence and see if they provide any indication.
We could hypothesize that the judges will also take into account the family burden, the conditions of the local labor market and possibly the behavior of the parties during the relationship and during the trial.
However, it is probable that, even after this sentence, the criterion of length of service will remain the main parameter for determining the compensation between the minimum of six months and a maximum of thirty-six. If so, the practical impact of the ruling will be limited after all."
So this pronouncement does not dismantle the Jobs act, as Deputy Prime Minister Di Maio claimed?
“The judges rejected the objection made by the Court of Rome to the part of the law that establishes a minimum and a maximum of the compensation due. This means that, when they are called to decide, the judges will still have to respect these limits. Precisely for this reason, barring surprises contained in the motivation, it can be said that the sentence does not affect the essential content of the 2015 reform which is based from a technical point of view on the transition from a job properties, which corresponds to the sanction of reintegration, to a regime based on a liability rule , the indemnity sanction, predetermined as a minimum and a maximum."
Canceling compensation based on seniority and leaving judges free to assess on a case-by-case basis what practical effects it will have for workers and businesses?
“The effect of the sentence will be an increase in uncertainty about the amount of the compensation decided by the judge, with a consequent probable increase in judicial disputes.
As for workers, the ruling mainly benefits those with less seniority, for whom the protection against dismissal can add considerable weight. On the other hand, however, the other side of the coin must also be taken into consideration. This "higher weight" could have a disincentive effect on permanent hiring.
Workers with high length of service, who are very few, it must be said, given that the rule applies to employment relationships established from 7 March 2015, will instead have no benefit from this ruling given that their compensation will remain predetermined to the maximum extent envisaged From law."
