PUBLISHED BY Arlati Ghislandi
The criterion for determining severance indemnity was declared to be unlawful

With press release of 26 September 2018, the Press Office of the Constitutional Court announced that article 3, paragraph 1 of Leg. Decree no. 23 of 4 March 2015, has been declared unlawful in the part where it determines ‘in a rigid manner the indemnity payable to workers who have been dismissed unjustifiably’.


According to the Court, this provision, by virtue of which the indemnity due to the unlawfully dismissed worker is determined solely in relation to the length of service is ‘contrary to the principles of reasonableness and equality and contrary to the right and protection of employment decreed by articles 4 and 35 of the Constitution’.


The rule considered unconstitutional – and, moreover, recently amended by article 3, paragraph 1 of Leg. Decree no. 87 of 12 July 2018 (‘Dignity Decree’) with reference to the minimum and maximum limits of the indemnity – states that when it has been verified that there is no basis for dismissal for objective justified reason or for subjective justified reason or just cause, ‘the judge declares the employment relationship terminated at the date of dismissal and orders the employer to pay an indemnity not subject to social security contributions of an amount equal to two months’ salary of the last reference salary for calculating the severance indemnity for each year of service, in any case not less than six and not more than thirty six months’ salary’.


The publication of the Court’s decision is still pending