Lawyer Monthly Magazine - July 2019 Edition

carrying out the employment relationship. Furthermore, the jurisprudence of the Court has practically combined Article 8 of Law # 300/1970 with the provisions of the National Collective Labour Agreements in the context of the delivery of the criminal record at the time of recruitment, identifying the hypotheses envisaged by the social partners as cases of express relevance of the candidate’s judicial data for the purpose of assessing his professional aptitude. It should be noted, however, that with regard to the delivery of the certificate of criminal records - that is to say, a document which does not give evidence of final convictions but only of pending proceedings – some judgments have stated this requirement illegitimate because it is contrary to the constitutional principles of the presumption of innocence and the right to employment. What are the consequences in the event of unlawful use of relevant information pursuant to Article 8 of Law # 300/1970? On this aspect, it is necessary to make a premise: even if the Judge was to ascertain that the failure to establish the relationship was due to information acquired contrary to Article 8 of Law # 300/1970, the employment contract could not be executed ipso iure, since it implies a so- called infungibile facere (a discipline similar to the French astrainte introduced in 2015 in art. 614 bis of the Code of Civil Procedure is inapplicable to employment relationships). Therefore, the consequence of such conduct is, as a rule, damage compensation. A famous case in Italy of this rule was dealt with by the Court of Turin in relation to the failure to hire a worker for discriminatory reasons (evidence of this circumstance had been provided - as allowed by national law - through the use of statistical tools and, in particular, the absolute disproportion between the number of foreign people employed in the company compared to national standards, etc.). The Judges, having established that the failure to recruit was due to racial reasons, in fact, used as a parameter of compensation the indemnity referred to in Article 18 of Law # 300/1970, that is to say, the indemnity guaranteed to the worker unlawfully dismissed. LM old and still fundamental in the Italian legal system. In this almost half-century of validity, the rule has remained unchanged only on paper: the jurisprudence has gradually clarified, enriched and contextualized the sheer wording of the law, so much so that, to date, article 8 - as interpreted by living law - is absolutely appropriate to legitimize the processing of data under Article 10 - and even Article 9 – of the GDPR. The Court of Cassation, moreover, has repeatedly acknowledgedthe importance that judicial data have for the assessment of the candidate’s or worker’s working aptitude, thus admitting the existence of a legitimate interest of the employer or even stating the need for it for the purposes of Marco Marzano (R) Luca Daffra (L) Via Lorenzo Mascheroni, 31 20145 Milano T: +39 02 4819 3249 E: luca.daffra@ichinobrugnatelli.it W: www.ichinobrugnatelli.it About Luca Daffra I am a Partner of Ichino Brugnatelli e Associati, which I joined in 2006. Admitted to the bar in Mi- lan, I have strong expertise in employment law and labour law, social security issues and privacy-related matters, also through pre- vious significant experi- ence with leading Law firms, both national and international. I have taken part in ex- traordinary corporate transactions, focusing on Labour Law issues related to mergers and acquisi- tions, restructuring and re- organizations, redundan- cies and downsizing. Firm Profile Ichino Brugnatelli e Asso- ciati is widely recognised as a leading specialist employment law firm. We have also strong experi- ence in high-stakes litiga- tion and complex trans- actions, for both domestic and international clients. 65 Professional Excellence www. lawyer-monthly .com JUL 2019