Principle of Non-Reduction of Compensation to be Coordinated with the Employer’s “Ius Variandi”

The Court of Cassation, through Order No. 23205 of July 31, 2023, has affirmed that the principle of non-reduction of compensation extends solely to compensatory compensation for the essential intrinsic professional qualities of the tasks assigned to the employee and not to those components thereof provided to compensate for specific performance modalities or related difficulties or inconveniences.

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The Case Examined by the Supreme CourtNon-Reduction of Compensation

The judgment of the Supreme Court arises from the damages claim submitted by an employee who, in response to the employer’s decision to modify his duties, had not retained certain fringe benefits associated with the performance of his previous duties, including the company car and fuel card.

The Rome Court of Appeal, in partial amendment of the first-instance judgment, rejected the claim for damages. Furthermore, the appellate judge deemed the principle of non-reduction of compensation inapplicable as the benefits in question were not included in the concept of compensation for performance and, therefore, non-reducible.

The Decision of the Supreme Court

The Court of Cassation, in rejecting the employee’s appeal, noted that, according to established jurisprudential principles, the compensation level acquired by the subordinate employee – for which the guarantee of non-reduction of compensation under Article 2103 of the Civil Code applies – must be determined by considering the entirety of the corresponding compensation, taking into account the intrinsic professional qualities of the employee’s duties, related to the typical professionalism of the held position.

Treatments of greater favor constitute additional components to the minimum table amounts and are not covered by the protection provided by Article 36 of the Constitution concerning the proportionality of compensation; consequently, their elimination does not conflict with the principle of non-reduction of compensation as per Article 2103 of the Civil Code

In light of the above, according to the decision of legitimacy, the principle in question does not extend to compensation:

  • Paid due to specific performance modalities;
  • Linked to specific difficulties or inconveniences inherent in the assigned job.

Such compensation is not owed when the situations to which they were connected cease to exist.

Therefore, according to the Supreme Court, the principle of non-reduction of compensation must be coordinated with the legitimate exercise of the employer’s “ius variandi.” In such cases, the guarantee of non-reduction of compensation only applies to compensation paid considering the intrinsic professional qualities of the employee’s duties and the position held by the employee but not to those components paid to compensate, as mentioned, for specific performance modalities.

The LDP Team is available to provide assistance and advice to its clients, including the identification of compensation components to be retained in the event of a change in the assigned duties of employees.

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