The assignment of employees’ duties under the recent Legislative Decree no. 81 of 2015.
On 25 June 2015 the Legislative Decree no. 81 of 2015 (“the Decree“) came into force. The Decree completely revises the regulation of work relationships in Italy and in particular has revised the rules regarding the assignment of employees duties.
The Decree amends Article no. 2103 of the Italian Civil Code and provides employers an opportunity to change an employee’s duties.
Before the Decree came into force, an employee was entitled to carry out the duties they were employed to do. According to case law, whether a change to an employee’s duties was legitimate had to be judged on the basis of the professional content of the tasks. Such tasks needed to enable the affected employee to maintain and possibly improve the level of skills and experience already acquired from their previous work experience.
However, employers were entitled to assign duties of a lower level to employees, as an alternative to dismissal, provided that an agreement was reached with the affected employee and their trade union or the employers association or the local labour office.
Under the new Decree, an employer may unilaterally assign the employee tasks that are considered to be of a lower professional level, if there are organisational needs affecting the position of the employee or in other cases set out by the applicable National Collective Labour Agreement (“N.C.L.A.”).
Employers are allowed to do this if they can show that: the tasks the employee will be carrying out do not fall into a different legal category; the level of work assigned to the employee will not change; and the salary of the employee will not be reduced, except for the items of remuneration strictly linked to the tasks previously performed by the employee.
If an employer wants to change the duties carried out by the employee, the change must be documented in writing (otherwise it is null and void) and adequate training must be provided to the employee to enable them to manage their new duties.
It is still possible under the Decree, to demote an employee and to reduce their salary, provided that this is an alternative to their dismissal (or a way for them to acquire new skills or to improve their living conditions) as long as the employer has the employee’s consent. If a demotion is agreed between the employer and employee, it has to be signed in the presence of the Union.
In cases where the employer assigns higher level tasks to the employee, the relevant assignment will become permanent after six months (or after the different period set out by applicable N.C.L.A.), unless the employee is replacing another employee with the right to preserve their job position.