Constitutional Court no. 183/2022
A reform of the indemnity rules provided for by the so-called Jobs Act for unlawful dismissals in small companies is now a matter of urgency.
A further persistence of legislative inertia in this area “would not be tolerable” and would induce the Constitutional Court, if it were to be re-investigated, to act directly, despite the difficulties.
This is the warning that the Constitutional Court addressed to the legislator in its ruling no. 183 filed on 22 July 2022, while declaring inadmissible the Court of Rome's constitutional censures on the indemnity provided for by the Jobs Act for illegitimate dismissals in small businesses.
For the Court, in fact, an indemnity such as that determined by Legislative Decree 23/2015 within the narrow range between a minimum of three and a maximum of six months' salary “frustrates the need to adjust the amount to the specificity of each individual case, with a view to congruous compensation and effective deterrence, which considers all the relevant criteria set out in the rulings of this Court and contributes to configure the dismissal as an extrema ratio”.
Not to mention that the limited gap between the minimum and the maximum identified “gives preponderant, if not exclusive, prominence to the number of employees, which, on closer inspection, does not in itself reflect the actual economic strength of the employer, nor the seriousness of the arbitrary dismissal, nor does it provide plausible parameters for a liquidated damages settlement that approximates to the particularities of the concrete cases”.
In fact, the uniform and insurmountable limit of six months’ pay, which applies to employers and non-employers alike, operates with reference to heterogeneous activities, which are united by the number of employees employed, a figure that is “devoid of any significant value in itself”.
In conclusion, continues the Constitutional Court, such a system does not implement that balanced balancing of opposing interests, which is the primary function of effective compensation protection against unlawful dismissal.
It must therefore be acknowledged that “the actual existence of the harm denounced by the referring party must be recognized and the need must be affirmed for the legal system to provide itself with adequate remedies for unlawful dismissals announced by employers who have in common the number of employees”.
However, as stated in the judgment, the Court cannot remedy the breach, but it is up to the legislature to intervene.