The limitation period no longer runs in constancy of employment relationship
As regards the limitation of claims on employment, 2948 c.c.generally applies, according to which the sums paid by the employer to the service provider at intervals and the allowances due for termination of employment (Art. 2948, No. 5, c.c.) They are prescribed within five years.
Conversely, the issue of the beginning of this period has never found a specific discipline in our legal system, with the consequent application of the general principle of art. 2935 c.c. in the same way as the limitation period for a right starts from the moment when the right can be claimed.
On this point, the Constitutional Court had intervened, valuing the particular condition of the employee and specifying that the limitation of claims for work runs "from the day on which the right can be claimed... whenever the employment relationship [is] It is characterized by a particular strength of resistance which derives from a discipline that normally assures the stability of the relationship and provides the guarantee of appropriate judicial remedies against any illegitimate resolution" (Court Cost. n. 63/1966).
Over the years, the jurisprudence has declined this orientation in the sense of believing that the statute of limitations runs in constant relationship only in cases where the worker was guaranteed by the reintegrative protection provided by art. 18 Stat. Lav. ; whereas for workers who could not benefit from such a guarantee (because they were hired by small employers or because of the particular type of relationship), the course of the limitation period was deemed to start from the termination of the employment relationship.
Over time, with the changes made to art. 18 of Law 300/70 by the Fornero Law of 2012 and the Jobs Act of 2015, part of the jurisprudence and doctrine have considered that the regime sanctioning for illegitimacy of dismissal pursuant to art. 18 ("post Fornero") no longer guaranteed the stability of the employment relationship required by the case law for the limitation period to run during the relationship, having the L. 92 of 2012 introduced a complex system of sanctions in which reintegration has been reduced.
In line with the foregoing, since 2012, case-law has again questioned the issue of the commencement of the limitation period for work credits in a constant relationship, expressing two diametrically opposed orientations.
On the point, therefore, intervened, the Supreme Court, which ruled that, following the changes made by the legislature in 2012 to art. 18 Stat. Lav., today there is no longer that guarantee of stability that allowed to consider that the prescription runs in constant relationship.
This is because the permanent employment relationship is no longer assisted by a regime of absolute stability, which would assume, according to the Court, the predetermined certainty of reintegration protection for any hypothesis of unlawful dismissal.
The Court therefore ruled that the starting point for the commencement of the limitation period for workers' rights was the date on which the employment relationship ceased to exist, after ruling out the possibility that the permanent employment relationship, as defined by the new legal framework, is assisted by "a regime of adequate stability".
From this follows the beginning of the prescriptive period from the end of the employment relationship, for all those rights that are not prescribed at the time of the entry into force of the Fornero Law.
