Increasingly, workers (individually or in groups through so-called “class actions”) resort to legal avenues against their employer. The question we want to answer is: how can an employer prevent and better address a lawsuit filed by an employee, minimizing risks and damages?

In this article we analyse the main obligations of the employer and the possible defence strategies that the employer can implement in the face of legal actions by employees, based on the rules of Italian law.

Labour law and the Workers’ Statute are designed to protect the employee, who is considered the most vulnerable party in the employment relationship. For this reason, labour disputes follow a specific procedure, the labour rite, precisely, based on the principles of speed and orality.

However, although the worker is historically and socially seen as the “weak” party in the employment relationship, it is by no means certain that the worker is always right since both parties, employer and worker, are on the same level and must prove their reasons before the Judge.

Next, we analyse the most common labour causes and the possible defences of the employer.

1. Most common labour causes

1.1 Unlawful dismissal

A dismissal is considered unlawful when the employer does not comply with the legal or contractual rules governing the termination of the employment relationship. In particular, the dismissal is unlawful if:

• there is no just cause or justified reason: the law requires that the dismissal be justified by disciplinary reasons (just cause) or economic/organizational reasons (justified reason)
• the correct procedure has not been followed: the employer must follow the procedures established by law or collective agreement, such as the disciplinary challenge or notice
• it is discriminatory: the dismissal is discriminatory if it is based on reasons of sex, age, religion, sexual orientation, etc.

1.2 Higher duties and pay differences

This occurs when a worker performs duties of a higher level than those provided for in their contract, without receiving the corresponding pay. In this case, the worker is entitled to an adjustment of pay proportionate to the duties performed.

The law provides that if the worker performs higher duties for a significant period (generally considered to be more than three months), they are entitled to recognition of the higher qualification.

1.3 Failure to pay wages and allowances

The worker can claim payment of:

• Back pay: failure to pay wages due for work performed
• Overtime: failure to pay for hours worked more than normal hours
• Severance pay (TFR “Trattamento di Fine Rapporto”): failure to pay the amount due at the end of the employment relationship;
• Other allowances: failure to pay allowances provided for by the contract or by law (e.g. sickness, maternity, unused holiday pay).

1.4 Demotion and Mobbing

Demotion occurs when a worker is assigned to duties lower than those provided for in their contract or lower than those they previously performed. This can occur either explicitly (with a formal communication) or implicitly (through a gradual reduction of responsibilities).

Mobbing, on the other hand, is defined as a set of harassing and discriminatory behaviours, repeated over time, which are intended to damage the worker on a professional and personal level. These behaviours can include humiliation, isolation, unjustified criticism, demotion, etc.

1.5 Workplace Accidents and Occupational Diseases

A workplace accident occurs when a worker suffers physical or psychological harm due to a violent and sudden event that occurs during work activity or because of it, while an occupational disease develops gradually over time due to prolonged exposure to risk factors present in the workplace environment.

In the event of a workplace accident or occupational disease, the worker is entitled to:

• Economic compensation: INAIL (National Institute for Insurance against Accidents at Work) provides economic compensation for the period of temporary disability and, in the event of permanent disability, a pension or a lump sum
• Healthcare: INAIL provides free healthcare for necessary treatments
• Compensation for damages: the worker can claim compensation from the employer for damages beyond those covered by INAIL, such as biological damage, moral damage, and financial damage.

2. Possible Defences of the Employer

2.1 Unlawful dismissal

A typical and very frequent case in the employment field is that of opposition by the worker to dismissal. In our legal system, the employer cannot freely dismiss an employee (so-called termination ad nutum), but it is necessary a fact, a cause or a reason that justifies the dismissal, to make it legitimate.

A first fundamental defence is that on the protection to be applied in cases of unlawful dismissal. In fact, in case of unlawful dismissal, the law provides for two types of protection for the worker: reinstatement to the job (real protection) or financial compensation (mandatory protection). The choice between the two depends on the size of the company: reinstatement applies if the company has at least 15 employees in the same production unit or 60 in total, where there are several production units.

The size of a company, or the number of its employees, can be demonstrated through the Unified Employment Book (LUL) in electronic format. This digital register is a fundamental document that certifies employment within the company and certifies the employment relationship with each employee. The LUL provides a complete, albeit synthetic, overview of the employee’s data.

Within the Unified Employment Book, the private employer registers subordinate workers, continuous and coordinated collaborators and associates in participation with work contribution, excluding assistants, working members, trainees and interns. This document constitutes irrefutable proof, if complete in all its elements and comprehensive of all the categories of workers mentioned above and fully attests to the size of the company and the protection regime applicable to the dismissal under the judge’s scrutiny.

The employer then has various defensive options regarding the reasons that led to the dismissal – the following are the main ones:

• Discriminatory dismissal (i.e., ordered and implemented for reasons of sex, religious belief, political orientation, belonging to an ethnicity different from one’s own or for an origin from a specific part of the world or the same country, etc.): meanwhile, the burden of proof lies with the worker, who must demonstrate that their dismissal is linked and based solely on discrimination. Which is not always obvious, especially in the presence of other, relevant and predominant, legitimate reasons, which could constitute just cause or justified reason if proven by the employer.
• Retaliatory dismissal, i.e., implemented for revenge, the demonstration by the worker that they have taken legal action must be aimed at proving that it constituted the sole and determining reason; and this is also not at all obvious, since some expulsion measures may be dictated by objective reasons of corporate restructuring or even by supervening incompatibility of the worker with the work environment or by the worker’s refusal to accept new directives or to comply with new disciplinary rules set by the employer for all employees.
• Dismissal for just cause or justified reason, the burden of proof discharged by the employer makes the dismissal justified and therefore legitimate: a valid argument is certainly the restructuring or corporate reorganization (provided, of course, that it is effective and in progress, and not merely wishful and a facade, therefore pretextual), since it falls within the employer’s freedom of enterprise and their self-determination to manage the company as they see fit, in order to maximize their profit and minimize costs and waste. Furthermore, always by way of example, the exceeding of the protection period by the worker or the performance of work activity during the period of illness, such as to presume the non-existence of the illness itself, could be indicated as just cause, and negligence, imprudence or incompetence in rendering the work performance, unjustified absence from work, failure to comply with company directives, violation of disciplinary rules, falsification or dissemination of sensitive company data as justified reason.

These are all facts, circumstances and behaviours that, if duly proven, exonerate the employer from fault and make the dismissal legitimate.

2.2 Higher duties and pay differences

This is the most common type of case in individual labour disputes between private parties: the worker sues their employer to establish the fact that they have performed higher duties than those for which they were hired, in order to obtain recognition of the higher qualification and consequently the differences in pay.

The evidence must be specific and not generic, and much will depend on the choice of witness by the worker and the latter’s ability to provide relevant facts that constitute proof of higher duties. Therefore, it will not be sufficient for evidentiary purposes that the witness reports having seen the worker on some occasion performing duties of a higher level that would entitle them to the higher qualification, but rather that they have observed them for a certain period of time (coinciding with the period of the employment relationship under the judge’s scrutiny) and that they can specifically report the individual tasks.

This is why the “ideal” witness for this type of dispute is a work colleague, whose testimony may be objectionable on several grounds:

• the worker who has been a colleague of the plaintiff for a minimum period in the same company is clearly an impeachable witness for this very reason.
• in terms of duties, a worker who has performed their duties for the same company in which the plaintiff works during the same period in question may not be aware of the work performed by the colleague because, for example, they are employed in a sector different from that of the person who took legal action. For example, if a sales representative worked in the same company where the other colleague (who sued for higher duties) performed administrative or marketing duties, they may not know anything about the specific duties performed by the colleague and provide a patchy and sometimes completely irrelevant testimony.

Regarding all the testimonies, whose results must be combined (think of the witness who saw the plaintiff at one point in the working day, while the other saw them at a different time), it will be the skill of the employer’s lawyer to raise objections pointing out the discrepancies, inconsistencies, and even contradictions between one testimony and the other.

For all witnesses, including those external to the company, who testify about the higher duties performed by the plaintiff, the objections can be numerous: from the degree of kinship (the parent or spouse who accompanies the plaintiff to work every morning) due to the unreliability given by the degree of closeness to the plaintiff; to age (it’s quite easy to confuse the witness by testing their knowledge of the facts of the case, making them recall and connect experiences and memories that occurred at different times and circumstances), up to the level of education of the witness themselves (it’s obvious that to report certain highly specific or highly professional duties, detailed knowledge of the sector in question and evaluative ability to recognize a higher-level work performance are necessary).

2.3 Failure to pay wages and allowances

If the employer is summoned to court for failure to pay wages and allowances, the first thing the employer must do is provide concrete proof of payment of the wages and allowances due, by presenting pay slips, bank transfer receipts, bank statements, and other accounting documents. If necessary, they can also raise the defence of the statute of limitations for the worker’s right to claim the amounts due: the statute of limitations for wage claims is 5 years from the termination of the employment relationship.

The employer can also contest the amount of the sums requested by the worker, providing their own reconstruction of the calculations and demonstrating any errors or omissions on the part of the worker. The employer can also raise the defence of offsetting with any credits they have against the worker, for example, for damages caused by the worker or for unreturned advances.

In exceptional cases, the employer can invoke force majeure or supervening impossibility to justify the failure to pay wages, for example, in the event of natural disasters or company bankruptcy.

2.4 Mobbing

According to the Supreme Court of Cassation, mobbing is a complex phenomenon that manifests itself through a series of harassing and persecutory behaviours, repeated and prolonged over time, carried out against a worker with the aim of isolating, marginalizing or damaging them professionally and psychologically.

For mobbing to exist, all the following key elements outlined by the Supreme Court of Cassation must be present:

• Multiplicity and repetitiveness of conduct: it is not a single episode, but a series of actions or omissions that are repeated over time.
• Persecutory intent: the conduct is carried out with the aim of harming the victim, isolating or marginalizing them.
• Injury to dignity and/or health: mobbing must cause damage to the physical or psychological health of the worker, or to their professional dignity.
• Causality: there must be a link between the harassing conduct and the damage suffered by the victim.

It is important to note that there are false beliefs and approximations regarding mobbing, which often lead workers to consider themselves victims in an unfounded way: in fact, mobbing does not coincide with mere situations of stress caused by excessive workloads, personal problems misunderstood by the employer, or pressure due to the achievement of company objectives.

Instead, a whole series of actions or behaviours suitable to integrate a conduct identifiable as mobbing must exist (such as isolation within the work environment, objective through placement in a particularly uncomfortable location or position, or subjective carried out through exclusion from meetings, projects, company communications, refresher courses and other activities); but others that are sometimes on the borderline between conduct and legitimate behaviour of the employer and a real abuse and harassing conduct: to cite some illuminating examples, one thing is to become the target of jokes and banter, which often also occur in everyday life (perhaps in a family or friendly environment), another is to become the object of insults and hostile behaviours of various kinds, up to finding oneself at the centre of a real smear campaign carried out against oneself by the employer or their collaborators and/or employees.

Especially in these cases, the intensity and continuity of such behaviours must be verified on a case-by-case basis and it is practically impossible to determine their harmfulness a priori: everything will depend on the evidence provided in court, so much so that sometimes one could even reach the paradox of passing off as harmful conduct some that were not so marked and evident and not succeeding in proving in court truly harassing conduct, due to lack of objective evidence or due to discrepancies in the collection of testimonies.

But what qualifies mobbing and distinguishes it from unpleasant but not harmful behaviours is the persecutory intent and the consequent objective injury to the health, personality or dignity of the worker, which must always exist to integrate the case, and a direct causal link between the persecutory behaviour and the injury to health, personality and dignity.

The defence that can be implemented by the employer can and must be aimed not only at denying the persecutory nature of the conduct (which sometimes is not so clear and marked), but also at denying the injury and the consequent damage to the health, personality and dignity of the worker who has taken legal action.

The cause-and-effect relationship of the harmful conduct on the damage can be widely refuted, where, for example, there are concurrent causes that are decisive or prevalent in causing the damage itself.

2.5 Workplace Accidents and Occupational Diseases

In this case, it is of fundamental importance that the employer proves that they have adopted all the safety measures required by law and technical standards, providing documents, records, inspection reports and testimonies. The employer can also dispute the causal link between the accident/illness and the work activity, demonstrating that the harmful event was caused by external factors or by the worker’s imprudent behaviour, as well as argue that there was contributory negligence on the part of the worker, who contributed to causing the accident/illness with their own negligent or imprudent behaviour.

The employer can raise the statute of limitations as a defence against the worker’s right to claim compensation for damages. The statute of limitations for claims related to workplace accidents or occupational diseases is 10 years from the date of the harmful event.

In exceptional cases, the employer can invoke force majeure or unforeseeable circumstances to exclude their liability, for example, in the event of unpredictable natural events.

3. Obligations that the employer must respect to avoid disputes with workers

The employer has a series of fundamental obligations to avoid disputes with workers, which can be grouped into different areas:

3.1 Compliance with contractual and legal rules

Employment contract: 

• Draw up clear and complete employment contracts, which define duties, remuneration, working hours and other aspects of the relationship.
• Respect the clauses of the contract and the rules of the applicable collective agreement.

Remuneration: 

• Pay wages and allowances due regularly, respecting deadlines and methods provided.
• Provide clear and detailed pay slips.

Working hours: 

• Respect the working hours limits provided by law and the collective agreement.
• Pay overtime hours.

Dismissal: 

• Carry out dismissals only for just cause or justified reason, in compliance with the procedures provided by law and the collective agreement.
• Provide the dismissal notice in writing.

3.2 Health and Safety at Work

Risk Assessment:

• Carry out the assessment of risks present in the workplace and adopt the necessary prevention measures.
• Prepare the Risk Assessment Document (DVR).

Information and Training:

• Inform and train workers about risks and prevention measures.
• Provide individual protection equipment (PPE).

Supervision:

• Supervise compliance with safety regulations.
• Appoint the Head of the Prevention and Protection Service (RSPP).

3.3 Respect for the Worker’s Dignity

Mobbing and demotion: 

• Avoid harassing or discriminatory behaviour towards workers.
• Do not demote workers without justified reason.

Discrimination: 

• Do not discriminate against workers based on sex, age, religion, sexual orientation, etc.

Privacy: 

• Respect the privacy of workers.

3.4 Communication and Transparency

Communication: 

• Maintain clear and open communication with workers.
• Provide timely information on company decisions that concern them.

Transparency: 

• Adopt transparent and clear company policies.
• Provide workers with access to relevant information.

3.5. Dispute Management

Conciliation: 

• Seek to resolve disputes with workers through conciliation.
• Collaborate with conciliation bodies.

Legal assistance: 

• Rely on a lawyer specialized in labour law in case of disputes.

4. Useful Tips for the Employer

First, it is essential to maintain accurate and complete documentation of all aspects of the employment relationship. This guarantees legal compliance, facilitates the management of benefits and provides an objective basis for resolving any disputes.

Equally important is the constant updating on legislative and contractual developments which is essential for compliance and efficiency. Continuous training and professional advice are fundamental tools to stay up to date.

Another point not to be underestimated is the creation of a respectful and positive work environment, fundamental for the productivity and well-being of employees: in fact, the promotion of effective communication, mutual respect and recognition of merit contributes to the creation of a healthy company climate.

By respecting all the obligations mentioned above, the employer can significantly reduce the risk of disputes with employees, creating a more serene and productive work environment.

Finally, we always recommend relying on a lawyer specialized in labour law to assess the situation and define the most effective defence strategy. It is important to remember that each case is unique and the defence strategy must be adapted to the specific circumstances. The Fiat Lux Legal team is at your disposal to protect your interests in the best possible way! Do not hesitate to contact us!