Even without the element of subjection to the employer's directive power, it is possible to prove the existence of the employment relationship through presumptions. The Supreme Court examined an employee's claim to establish the existence of an employment relationship with a company for which he provided consultancy services. As is well known, Article 2094 of the Italian Civil Code defines an employee as an individual who undertakes - against salary payment - to collaborate in the company, performing intellectual or manual work under the direction of the entrepreneur. In particular, case law holds that an employment relationship can be established by proving that the employee is subject to the employer's disciplinary, managerial and supervisory power. The Supreme Court, in its decision no. 1095/2023 has ruled that if there is no direct evidence of hetero-direction to qualify a self-employment relationship into a subordinate employment relationship, it is possible to consider evidence, such as, for example, continuity of performance, compliance with a predetermined working time, compensation paid upon regular schemes, absence of business risk and organisational structure on the part of the employee. The abovementioned elements can be presumptive evidence of the employment relationship and have a substantial value in qualifying the relationship. The courts' investigation started from the formal qualification stated by the parties in the contract. Then, during the trial, the employee reported that he used work tools provided by the principal, that the employer controlled his working hours, and that tasks equal to those he performed were also assigned to another company employee. The Supreme Court, upholding the judgment of the Court of Appeal, has confirmed that it is possible to establish a subordinate employment relationship even without proof of hetero-direction if indications can substantiate the worker's claims to qualify the relationship as a subordinate employment relationship.
2024 - Morri Rossetti
