ITA 
Published on Sole24Ore – NT Lavoro – on 13/03/2023
A transfer of a branch of a business was declared unlawful, and the transferor was ordered to pay the transferred employee compensation for the invalid transfer and the salary differences accrued after the transfer. According to the Court of Appeal, the retributive nature of the claim of the assigned employee who has vainly put the assigning employer in default, for the period after the notice of default, is not incompatible with the right to compensation for damages from the invalid assignment, for the period from the date of the assignment until the notice of default under Article 1217 of the Italian Civil Code.
The company challenged the judgment for having recognised amounts in compensation even for the period prior to the formal offer of employment and even before the judgment that had recognised the ineffectiveness of the branch transfer. The appellant company pointed out the inconsistency of the solution adopted by the Court of Appeal, whereby, following a judgment that declares the unlawfulness of a transfer of a business, an employee claiming sums for the period prior to the judgment could obtain them by the mere existence of the judicial decision, whereas if he claimed sums for the subsequent period he would need to put the transferor company in default.
The Supreme Court, in its judgment 6902/2023 of 8 March, upheld the company's appeal by conducting an examination of the principles governing this matter, starting with the distinction between the period preceding the declaration of illegitimacy of the assignment and the subsequent period. With reference to the period following the ruling, and recalling the Court's consolidated line of reasoning, the judges ruled that, following the declaration of illegitimacy of the assignment and the order to reinstate the employment relationship with the assignor, the relationship with the assignee is deemed to have been established as a mere factual matter and the contractual relationship between assignor and assigned employee becomes effective again and the ordinary obligations of both parties are revived. With reference to this time frame, taking inspiration by the Constitutional Court's ruling 303/2011, a constitutionally oriented interpretation of the legislation has been made, which leads to the overcoming of the sinallagmatic rule of consideration, whereby the employer who, despite the judicial order does not reconstitute the employment relationship, is however obliged to pay the remuneration to the employee who has offered the work performance (Italian Supreme Court, unified sections, 2990/2018).
With regard to the period that precedes the declaration of illegitimacy of the transfer, on the other hand, the employment relationship between the assignor and the employee remains quiescent until the judgment, after which, and as a consequence of the judgment, the non-receipt of work in the period preceding the judgment becomes a breach of contract by the assignor towards the employee, who may bring an action for damages provided that he has put the employer in default, either by making available his working energies or by ordering him to receive the work. Only in this way is the refusal of the transferor unjustified and any damage caused liable to be compensated.