The legal analysis of the employment contract provides the opportunity to verify the correctness of the employment relationship.
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The employer retains full discretion in deciding on working hours (extent and location) when concluding the contract of employment, on account of the company’s needs and its organisational power.
Admittedly, the same unilateral power – so-called ius variandi – is more difficult to recognise after the employment relationship has been established, as it may result in damage to the employee.
A sudden reduction in working hours (and therefore in salary) can often make the employee think that the employer is about to dismiss him or her. In such cases, what protections does the employee have?
In this article:
You must first know that the Italian law grants certain workers priority in the transformation of their employment contract from full-time to part-time.
Employees suffering from oncological diseases or other severe pathologies are indeed entitled to have their contracts converted into part-time contracts.
And there is more…
The favourable provision also applies:
The employment relationship must, of course, revert to full-time on request of the person concerned.
An employee who has converted the full-time employment relationship into a part-time one has the right of priority in recruitment with a full-time contract to perform the same or equivalent duties.
What can the employee do if the decision to transform to part-time is unilateral on the part of the employer?
The answer was provided by the Italian Supreme Court, which ruled on the variation of the amount of hours agreed upon.
The change of an employment contract from full-time to part-time is only permissible if the agreement between the parties is made in writing.
The Italian Supreme Court of Cassation (No. 1375/18) reiterated that the transformation of a full-time employment relationship into a part-time one cannot take place as a result of a unilateral determination by the employer, but requires in any case the written consent of the employee, whose refusal does not constitute a justified ground for dismissal.
In the hypothesis of the transformation of the employment relationship from full-time to part-time, the reduction in the amount (i.e. hours) of the work performed determines a proportional reduction of the total remuneration in all its components, including seniority steps.
As mentioned, according to the Italian Supreme Court judgment under review, the employer cannot unilaterally decide to change from a full-time relationship to a part-time one, i.e. to a reduction in working hours, without the employee’s written consent.
The variation, upwards or downwards, of the agreed number of hours is a modification of the initially agreed employment contract that requires a renewed expression of will.
Such an intention cannot be inferred from mere circumstantial conduct of the parties, such as the fact that the employee initially came to the workplace and started to perform the duties according to the new schedule.
For consultation on this topic, please contact us or visit the employment law page of our website.