PUBLISHED BY Arlati Ghislandi
TAG: , HIRING
Documents requested at the time of hiring – Hypothesis of the unlawful refusal to hire a worker
17
Sep
2018

A employer’s decision not to hire a worker in the light of his refusal to produce a certificate of pending charges, which is not expressly provided for in the contract, has no legal basis.

 

With sentence no. 19012 of 17 July 2018, the Court of Cassation ruled illegitimate the request of the employer who, for the purposes of hiring a worker required that he also present the certificate of pending charges, despite the fact that the applicable collective agreement calls for the worker about to be hired to produce only the criminal certificate dated not earlier than three months.

 

Following a literal interpretation of the applicable contractual rules, the Supreme Court considered unfounded the employer’s claim to add to the documentation necessary for recruitment purposes as specified in the collective labour agreement itself. In fact, in the event that the provisions obligate the worker to produce the ‘criminal certificate’, the employer cannot condition the recruitment by introducing an obligation for additional documents.

 

As known, article 8 of Law no. 300 of 20 May 1970, states that ‘an employer is not allowed, for recruitment purposes and during the employment relationship, to conduct investigations, not even through third parties, on the political, religious or trade union opinions of the worker, as well as facts not relevant to assess the worker’s professional aptitude’. In this legal framework, the criminal certificate ‘is justified by the relevance for assessing the professional aptitude of a worker of the knowledge of certain information relating to the existence of criminal convictions that have become final’.

 

In the absence of an express contractual provision, the number of documents that the worker on the verge of being hired is required to submit cannot be extended ‘by way of interpretation to include information relating to ongoing criminal proceedings, especially in view of the constitutional principle of the presumption of innocence’.

 

In particular, the status of ‘accused’ does not have any relevance for hiring purposes, so that the refusal to hire the worker must be considered illegitimate.