The Italian National Labor Office provided clarifications with reference to the statute of limitation of work-related credits, in the event of inspection carried out by the competent inspective body of the Labour Ministry. In particular, the Office’s provide INL inspectors with guidelines which underline that during the inspections they will need to take into account only work-related credits for which the five-year prescription term has not passed yet, starting from the first day in which the employee could have enforced the work-related credit even if the employment relationship is ongoing. Only in the presence of facts which are able to interrupt the limitation period, will be allowed to issue the warning for old credits towards the employer, as far as no more than five years have passed from the date of the interruptive act.

With its note no. 595 of January 23rd, 2020, the Italian National Labor Office (INL) provided clarifications with reference to the statute of limitation of work-related credits, in the event of inspection carried out by the competent inspective body of the Labour Ministry, thus removing some of the uncertainties that occurred in practice, which led to unequal treatments.

The legal framework of the statute of limitation of work-related credits is provided by Articles 2948 and 2935 of the Italian Civil Code:

- the former states that all sums paid on annual or infra-annual basis by the employer to the employee, as well as all indemnities due upon termination of the employment relationship, shall be forfeited after five years;

- the latter provides the limitation of time period starts to run from the very moment the right can be enforced.

That moment, according to the simplest reading of the Law, is the day following each omitted payment, meaning that the period of limitation runs during the employment relationship.

However, since 1966 the Italian Constitutional Court declared such interpretation allowed only for employees who (due to the regimentation applied to their employment contract) are entitled to be reinstated in case of unfair dismissal. On the contrary, for employees entitled to compensation of damages but not to reinstatement in case of unfair dismissal the limitation period should start running only from the time of termination of the employment relationship.

According to the Court’s reasoning, those employees could be somehow “afraid” of claiming their rights as long as the employment relationship is ongoing.

It is clear, however, that this interpretation materially expands the statute of limitations, exposing companies to litigation over very long periods of time.

Even for this reason, recent case Law (among which: Supreme Court of Cassation, ruling no. 12553/2014; Employment Tribunal of Milan, ruling no. 2460/2015; Employment Court of Appeal of Florence ruling no. 146/2016) have pointed out that a case by case evaluation on the actual existence of a “fear of being dismissed” should be carried out.

Such assessment, however, should necessarily take into account the actual ways of performance of the specific working activities concerned, and entail an evaluation on the existence of a condition of psychological subjection of the employee towards the employer.

Given the above, through its note INL clarified that the evaluation on the presence of an alleged condition of psychological subjection of an employee is a duty of the judicial authority, summoned by the employee itself in order to exercise his rights.

Inspective bodies, by their side, should address their activities to the certain and payable credits which are not subject to interpretation. The Office’s note provide INL inspectors with guidelines which underline that during the inspections they will need to take into account only work-related credits for which the five-year prescription term has not passed yet, starting from the first day in which the employee could have enforced the work-related credit even if the employment relationship is ongoing.

Only in the presence of facts which are able to interrupt the limitation period (i.e. the employee has already placed the employer on default pursuant to Article 1219 of the Italian Civil Code), INL inspectors will be allowed to issue the warning for old credits towards the employer, as far as no more than five years have passed from the date of the interruptive act.

The instructions issued by INL should therefore be appreciated since they meet the need to provide clarification on the matter and was strongly requested by economic practitioners and, at the same time, do not harm the employees leaving them free to plea an employment tribunal to satisfy their elder credits.

Fonte: https://www.ipsoa.it/documents/lavoro-e-previdenza/amministrazione-del-personale/quotidiano/2020/02/03/work-related-credits-the-labour-ministry-clarifies-the-statute-of-limitation