Edited by Diego Meucci
After the Fornero law on dismissals, the statute of limitations for employment claims runs from the termination of the employment relationship. In brief, this is the principle of law pronounced by the Court of Cassation in its judgment no. 26246 of 6 September 2022 on a highly controversial issue after the reform of protection against dismissals brought about by the Fornero law (and subsequently by the Jobs Act), i.e. the limitation period for claims accrued by employees against employers with more than fifteen employees.
On this issue, it should be recalled that, until the Fornero Law came into force, the jurisprudential orientation (also expressed by the Constitutional Court) had always prevailed, according to which in employment relationships characterised by so-called ‘real stability’ (guaranteed by the reintegration protection) the claim could be extinguished by prescription even during the employment relationship.
However, at the time of the introduction of Law No. 92/2012, a different orientation was affirmed by jurisprudence and doctrine according to which, following the legislative change, reinstatement had now taken on a marginal role, so much so as to no longer justify the commencement of the statute of limitations during the employment relationship (precisely because of the loss of the ‘guarantee’ given by the so-called ‘real stability’).
The lack of ‘real’ protection was then extended with the entry into force of the decree on so-called ‘increasing protections’ (Legislative Decree no. 23/2015), which provided for a compensation indemnity in the event of unlawful dismissal for just cause, objective and subjective justification, relegating reinstatement in the workplace, essentially, to the hypotheses of disciplinary dismissal with insubstantial grounds and in the serious cases provided for by Article 2 of Legislative Decree no. 23/2015 (dismissal for retaliatory or discriminatory reasons).
In a very recent ruling, the Supreme Court confirmed the orientation established after the entry into force of the aforementioned Law No. 92/2012, stating that “the employment relationship of indefinite duration, as modulated by Law No. 92 of 2012 and Legislative Decree No. 23 of 2015, lacking the prerequisites of predetermination of the cases of termination and their adequate protection, is not assisted by a regime of stability”.
On the basis of this principle, the Supreme Court therefore held that the limitation period must run from the termination of the employment relationship for all those rights that were not already time-barred when Law 92/2012 came into force.
The consequence of this ruling is that any employer could now be exposed to potential litigation for employee claims arising since July 2007, without being able to object to the five-year statute of limitations.
This implies for companies the need, on the one hand, to immediately review the retention periods of company documents so as to be able to guarantee them an adequate defence also in relation to those concerning economic claims dating back in time (up to July 2007).
On the other hand, it could be useful to provide for periodic checks on the contractual treatments (for example, of the level of classification recognised in relation to the tasks actually performed) and remuneration recognised to employees. This is in order to verify their correctness and thus be able in the future to contain any economic claims by workers (which, over the years, could increase the employer’s economic exposure), providing if necessary, protected agreements to remedy any risky situations.
