The Court of Cassation, with sentence no. 3899/2019, has returned to rule on so-called dual employment, in a dispute concerning the appeal of a dismissal of a worker during a period of maternity leave, pursuant to art. 54 Legislative Decree no. 151/2001, specifying, first of all, that this phenomenon is independent of the existence of a real corporate group.
In fact, while the economic and functional link between the companies of the same group "does not determine if the extension of the obligations inherent in the employment relationship with one of them to the others of the same group [...] dual employment in the group company presupposes the insertion of the worker in the overall economic organisation to which the formal employer belongs and the sharing of the performance of the same, in order to satisfy the group interest, by the various companies, which exercise the typical employer powers and become substantial employers, also for the purpose of applying the provisions on collective dismissal” (Cass. no. 267/2019) and that of the individual.
A situation of dual employment therefore arises “if the same worker simultaneously provides service for two employers and their work is such that it cannot be distinguished which part is carried out in the interest of one employer and which is in the interest of the other, with the consequence that both beneficiaries of such activity must be considered jointly responsible for the obligations arising from that relationship, pursuant to art. 1294 of the Italian Civil Code, which establishes a presumption of solidarity in the event of an obligation with a plurality of debtors, where the law or title does not show otherwise" (Cass. no. 7704/2018), "although there may be an employment relationship where a single person is in the position of the worker and several people are in the position of employer, thus making the employer's obligation joint and several" (Cass. no. 17775/2016).
In particular, in the case submitted to the Supreme Court for consideration decided with sentence no. 3899/2019, the contested ruling of the Court of Appeal of Rome was deemed correct, which, having ascertained the traceability of the employment relationship to all the companies sued, and the dismissal for termination of the activity, by the formal employer company, of a worker during the period of maternity leave, had declared null the dismissal for violation of art. 54 cit., stating that "the defendants were jointly responsible for the obligations connected and consequent to the employment relationship" and excluding "that the derogation to the nullity of the dismissal provided for by Legislative Decree no. n. 151 of 2001, art. 54, c. 1, no. 3, lett. B), since it was not disputed between the parties that the cessation of the company's activity was attributable only and solely to the formal employer and not to the other companies that [...]also turned out to be employers ". (EP - EB)
