HReview – number zero

By judgment No. 26956 of 2025, Corte di Cassazione held that certification of the seriousness of an illness must be provided in accordance with the formal procedures laid down by the applicable collective agreement. 

After notifying his absence due to illness, an employee informed his supervisor – via WhatsApp – that he was affected by a “serious illness”. However, he subsequently failed to submit any medical documentation proving such seriousness, as required by the NCBA applied within the company in order to benefit from the longer protected period provided for serious illnesses and especially debilitating therapies. The company, considering that proof of the condition was lacking, applied the ordinary protected period and, once that period had elapsed, served notice of dismissal for exceeding the maximum period of sickness absence. 

The Corte di Cassazione referred to the principle whereby obligations relating to the certification of health conditions – and, in particular, of the “seriousness” of an illness – must be fulfilled in the manner established by the collective agreement and by the applicable health regulations. A generic or informal statement is not sufficient; rather, a medical certificate is required, clearly indicating the nature of the condition and its eligibility under the cases of serious illness provided for by the contract. 

The Court recalled that collective bargaining rules may provide for differentiated treatment for illnesses of particular severity, but access to such regimes presupposes formal medical certification. The burden of producing such documentation lies with the employee, who must comply with the procedures and time limits laid down in the contract. 

The initial judge referred to the principles set out in arts. 1175 and 1375 of Codice Civile, which require fairness and good faith in the performance of the employment relationship, and reiterated that informal communication cannot amount to fulfilment of an obligation that also serves a safeguard function for the employer, who is required to verify the employee’s entitlement to a more favourable treatment. According to the Court, it is irrelevant that the employer may in any event have become aware of the existence of the illness; what matters is that the prescribed documentation – the only means capable of proving the seriousness of the condition – was not submitted. 

Corte di Cassazione, therefore, confirmed the lawfulness of the dismissal. 

With the signing of the Draft Agreement of 5 November 2025, the contracting parties renewed the National Collective Bargaining Agreement for executives of companies operating in the tertiary sector, distribution and services, which shall be effective for the period from 1 January 2026 to 31 December 2028.
In addition to provisions concerning economic treatment, the Draft Agreement under review: 

• strengthens contractual welfare measures, 

• provides for the adjustment of employer contributions due for supplementary pension schemes and for protection against accidents, 

• introduces amendments concerning the applicability of the NCBA, the fight against contractual dumping, gender equality, pay transparency, continuous training, parenthood and serious illnesses. With reference to this latter topic, particular relevance is given to the reference to measures protecting workers affected by oncological, disabling or chronic diseases as provided for by art. 1 of Law No. 106/2025, 

• provides for new social protections with the declared aim of addressing demographic changes affecting the social context. In this regard, particular importance is attached to the experimental introduction of an incentive supporting active ageing of executives, aimed at fostering generational turnover while preserving sector-specific skills. 

The following analysis examines the main measures introduced and changes brought by the renewal agreement. 

Definition of executive
In order to ensure greater protection for executives operating in corporate contexts affected by innovation processes, with particular reference to the use of artificial intelligence systems in production processes, art. 1(1) of the Agreement under review acknowledges the need to assess a possible revision of the definition of workers classified as executives under the current NCBA of 12 April 2023, including new strategic professional profiles characterised by high levels of expertise and responsibility. 

Economic treatment
The Agreement under review introduces significant changes with regard to economic treatment, providing under arts. 2 and 3 for an increase in monthly remuneration, with a consequent revision of the applicable collective minimum salary.
More specifically, a gross monthly pay increase at full regime amounting overall to EUR 800 is provided, to be paid in the following instalments: 

• EUR 320 with effect from 1 January 2026,
• EUR 260 with effect from 1 January 2027,
• EUR 220 with effect from 1 January 2028. 

As a result of these increases, the monthly contractual minimum, already set by the NCBA of 12 April 2023 at EUR 4,340 with effect from 1 July 2025, is amended as follows: 

• EUR 4,660 with effect from 1 January 2026,
• EUR 4,920 with effect from 1 January 2027,
• EUR 5,140 with effect from 1 January 2028. 

The parties provide that the above pay increases may not be offset against or used to compensate individual treatments already agreed between the employer and the executive, provided that such treatments were not granted after 31 July 2025 i) as an advance or anticipation of future contractual increases or ii) for the purpose of restoring the purchasing power of remuneration.  

Welfare services 
In continuity with the experimental provisions set out for the 2024–2025 period under the previous renewal agreement, for the 2026–2028 three-year period art. 4, paragraph 1, provides for the payment to all executives of an annual welfare contribution for the purchase of services through the welfare platform managed by the Centro di Formazione Management del Terziario (CFMT).
The amount of this contribution, increased from a minimum of EUR 1,000 to EUR 1,500 per year, is granted according to the following criteria: 

• it shall be cumulative with any flexible benefits systems already recognised by the employer, 

• it shall be pro-rated in the event of hiring or appointment of the executive during the course of the year, both in the case of open-ended and fixed-term employment, 

• it shall not be pro-rated in the event of part-time employment. 

In order to ensure the provision of the above welfare services, for the years 2026, 2027 and 2028 the annual contribution due to CFMT – determined with effect from 1 October 2021 at EUR 290 borne by the employer and EUR 130 borne by the executive – shall be increased overall by EUR 36, of which EUR 18 borne by the employer and EUR 18 borne by the executive.
As a result of this increase, which is in any event lower than the increase provided for by the previous renewal agreement for the years 2024 and 2025, with effect from 1 January 2026 and until 31 December 2028 the annual contribution shall amount to: 

• EUR 308 borne by the employer, 

• EUR 148 borne by the executive. 

Furthermore, in the context of enhanced support for active labour market policies aimed at executive outplacement, under arts. 11 and 11-bis the parties reduced the contribution that the employer is required to pay to CFMT from EUR 2,500 to EUR 2,000, in the event of termination of the employment relationship – including by mutual consent – occurring with effect from 1 January 2026, for the activation of outplacement procedures and access to active labour market programmes aimed at executive redeployment.
Such contribution shall not be payable in the event of termination of the employment relationship: 

• for just cause, 

• for subjective justified reason, 

• by mutual consent, where at the date of termination the executive has reached the age of 64, 

• due to voluntary resignation. 

Supplementary pension schemes – ‘Mario Negri’ Fund
Without prejudice to the ordinary contribution borne by the employer amounting to 12.86 per cent of the conventional annual remuneration of EUR 59,224.54, with effect from 1 January 2026 the ordinary contribution due from the executive shall increase from 1 to 2 per cent of the said conventional annual remuneration. The amount of this annual contribution shall therefore double, increasing from EUR 592.25 to EUR 1,184.49 per year.
With reference to the above supplementary contribution, the parties also agree on a further increase – in addition to that provided for under the previous renewal agreement – in the calculation rate of the supplementary contribution borne by the employer for the 2026–2028 three-year period, as follows: 

•  2.52 per cent with effect from 1 January 2026;
•  2.57 per cent with effect from 1 January 2027;
•  2.62 per cent with effect from 1 January 2028. 

Illness and accident
As part of the strengthening of insurance benefits relating to individual social security and assistance, with effect from the contribution period relating to the fourth quarter of 2025 (October–November–December 2025), the parties provide for an increase in the annual premium due from the employer to Associazione Antonio Pastore, which rises from EUR 410 to EUR 560 per year for each insured executive. Accordingly, without prejudice to the deduction borne by the executive, the total contribution due to Associazione Antonio Pastore shall amount to EUR 5,321.26 per year for each executive.
The parties also introduce amendments to insurance protection against non-occupational accidents. In particular, with effect from 1 January 2026, coverage under an accident insurance policy taken out by the employer with Associazione Pastore shall be activated provided that the executive’s non-occupational accident results in a level of invalidity of at least 3%, with a deductible of three percentage points where such invalidity is certified as exceeding 3 per cent and up to 10 per cent. 

Contribution incentives
With reference to the contribution incentive provided for the hiring or appointment of new executives within the sector, art. 7 of the Agreement specifies that the reduced contribution constitutes a temporary measure, applicable i) only once over the course of the executive’s working career and ii) for a maximum of two years, extended to three years in the case of fixed-term employment contracts entered into as a measure supporting active ageing, as examined in the following dedicated paragraph.
In order to ensure the proper use of the said incentivised contribution by employers, the parties agree to monitor its application by 30 June 2027 and to intervene where the ratio between i) executives hired or appointed with incentivised contributions and ii) executives subject to ordinary contributions exceeds 15 per cent. 

Active ageing
Art. 9 of the Agreement introduces a specific incentive measure aimed at promoting senior-level generational turnover while at the same time maintaining employment stability for senior executives.
With effect from 1 January 2026, executives whose age is up to three years below the statutory old-age retirement age (currently set at 67), whose employment relationship has ceased for any reason, shall have the possibility of entering into a new fixed-term employment contract with the employer, including on a part-time basis, with the assignment of specific mentoring functions.
The execution of the said individual contract – which in any event does not constitute an obligation on the employer – must take place before the territorial associations of Manageritalia or ConfCommercio, which shall certify its execution on pain of invalidity.
Following the execution of such contract, the employer may benefit, once only for each contracted executive and for a maximum period of three years, from the contractual contribution incentive referred to in the previous paragraph, even where such incentive has already been used in previous employment relationships.
Where such fixed-term contract terminates early, except in cases of just cause, the executive shall be entitled to compensation equal to the monthly instalments accruing from the date of termination to the contract expiry date. Such compensation shall be pro-rated in the event of part-time employment. 

Serious illnesses
Within the framework of protection for executives affected by serious illnesses, art. 13 of the Agreement incorporates the provisions recently introduced by Law No. 106 of 18 July 2025 in favour of workers affected by oncological, disabling and chronic diseases. In particular, art. 1 of the said legislative measure provides, with effect from 9 August 2025, for the possibility for such workers to request a period of extraordinary unpaid leave, not counted towards length of service or social security purposes, of a duration not exceeding 24 months, provided that they are affected by oncological, disabling and chronic diseases, including rare diseases, which: 

• entail a degree of invalidity equal to or greater than 74%, 

• are certified by appropriate documentation issued by the general practitioner or specialist physician operating within a public or accredited private healthcare facility responsible for the worker’s treatment. 

Without prejudice to the executive’s right to job retention throughout the entire period of such leave, the employer shall be required to fully bear the overall contribution to the supplementary healthcare assistance fund FASDAC, set at 9.94% of the conventional annual remuneration of EUR 45,940 (art. 27 of the relevant NCBA). 

The Italian Data Protection Authority, by decision of 21 May, fined a renowned company for having unlawfully processed the personal data of an employee, gathered from social networks, and used them to formalise two disciplinary charges which were followed by disciplinary dismissal. 

The dismissed employee lodged a complaint with the Garante, claiming that the company had unlawfully used content extracted from her Facebook profile and from private chats on MS-Messenger and WhatsApp. 

Among the content used were verbatim excerpts of comments and photo captions conveyed to the employer through screenshots sent by some colleagues, who were among the employee’s contacts on Facebook and participants in her private conversations on Messenger and WhatsApp. 

The communications also concerned exchanges of opinion that had taken place in contexts unrelated to the employment relationship and were deemed irrelevant for professional evaluation purposes. 

This gave rise to a legitimate expectation of privacy on the part of the complainant with regard to the content shared with a defined circle of recipients, given that the communication had taken place within a chat, in a closed Facebook group, with the result that the use of such content by a third party (in this case the employer) would necessarily have required a prior balancing of the rights and interests of the parties involved. Corte di Cassazione, in a judgment concerning a Facebook chat consisting of trade union members, stated: “the need to protect the confidentiality of communications also applies to e-mail messages exchanged via a mailing list reserved to members of a particular group of persons, to newsgroups, or to private chats with access conditioned on possession of a password provided to specific persons”; “messages circulated through new ‘forms of communication’, where they are sent not to an indistinct multitude of persons but solely to the members of a particular group, as in private or closed chats, must be regarded as private correspondence, sealed and inviolable”. 

In imposing the €420,000 fine, the Garante emphasised that, once the private nature of the conversations and comments – published moreover in digital environments with restricted access – had been established, the company should have refrained from using them, given the evident breach of the principles underlying the processing of personal data (lawfulness, supported by an appropriate legal basis; a specified, explicit, and legitimate purpose; and data minimisation, meaning data must be adequate, relevant, and limited to what is necessary). 

To support this reasoning, the Garante relied on the assessments expressed by Corte di Cassazione5, according to which: “the objective fact of the acquisition of information concerning the employee must be recognised as in itself sufficient to constitute data processing […], the methods and limits of which must be reconstructed with reference to the management of the employment relationship, to which the adoption of disciplinary measures is indisputably directed”; and “the placing of some of one’s personal data online, while implying the data subject’s willingness to allow their use for the purposes for which they were made available to the public, does not mean that consent has implicitly been given also for any other processing. The use of disseminated data for purposes other than those for which their dissemination was authorised constitutes, moreover, a possibility already considered by this Court …”. 

More specifically, the company, after receiving – via WhatsApp message – certain screenshots taken from the employee’s Facebook profile and Messenger and WhatsApp accounts, decided to use them in the disciplinary procedure, even though it had not actively carried out searches on the social profile or messaging channels. 

The absence of an “active role” on the part of the employer in seeking the information is irrelevant for the purpose of identifying the subsequent use of the information in the disciplinary procedure as “processing”, since such use is merely one of the possible manifestations of processing.

Therefore, in this case, the evidence obtained unlawfully, in breach of a constitutionally protected right to privacy in private correspondence, does not merely raise a question of inadmissibility but is itself an unlawful act. 

Previously published by Wolters Kluwer in Diritto & Pratica del Lavoro (on issue no.37/2025).

Adopting an AI system has a significant impact on a company’s organisational structure, its production processes, and business strategies, and entails the assumption of responsibility by the directors.

The decision to equip the company with a high-risk AI system is non-reviewable if adequate preliminary investigations have been conducted, if there are no conflicts of interest during the decision-making phase and if the entrepreneurial choice is reasonable and rational. The directors are therefore required to act in compliance with legal and statutory provisions, pursuing the company’s corporate purpose by adopting precautions proportionate to the risks connected with the implementation of an AI system, especially when such a system is classified as “high-risk”.

The use of an AI system must not undermine the adequacy of the organisational, administrative, and accounting structures, identified on the basis of the nature and size of the company; hence, the need for directors to act in an informed manner, in good faith, and exclusively in the interest of the company, in accordance with the principle of qualified diligence required by the nature of the appointment. 

In this regard, the business judgment rule provides significant protection for directors whose decisions are later found to be detrimental to the company. Unless the technical assessments prove to be blatantly unreasonable, the rule allows for a degree of discretion in entrepreneurial decisions and excludes directors’ liability where an ex-ante assessment shows that the management choice was reasonable and based on an informed decision-making process, and was not affected by a conflict of interest. However, managerial liability may arise if the decision to equip the company with a high-risk AI system is reckless and imprudent, based on insufficient knowledge, and denoted by the omission of appropriate precautions and checks.

With respect to the directors’ decision to use a high-risk AI system, and without prejudice to the legal mechanism that holds them responsible for the final decision, the question arises of how to structure the decision-making process to identify the most suitable system available on the market. In this regard, it should be noted that the decision-making process must duly consider the provisions of Chapter III of Regulation (EU) 2024/1689 (AI Act), even though these, while in force since 1 August 2024, will apply only as from 2 August 20279). 

Once the need or opportunity to equip the company with a high-risk AI system has been established, it is reasonable to expect the directors responsible for identifying the most appropriate solution to take those provisions into account when structuring the decision-making process. When conducting a comparative analysis of available solutions, they should also involve specific expertise. For example, they could establish a dedicated technical committee, including individuals who will carry out human oversight activities during the system’s operation.

The analysis and comparison of high-risk AI systems available on the market must necessarily include, for example: 

• a detailed examination of the technical documentation and operating instructions provided by the AI system supplier, 

• verification of algorithmic transparency requirements, 

• the system’s capacity for automatic event logging, 

• verification of the accuracy, robustness, and cybersecurity of the system, 

• examination of the quality management system implemented by the high-risk AI system supplier (art. 16), 

• an in-depth assessment of the human oversight tools and the human–machine interface. 

The detection of the AI system to be adopted by the company must also be based on information relevant both to the data protection impact assessment, in compliance with Regulation (EU) 2016/679 (GDPR), and to the risk assessment for health and safety in the workplace.

The results of the investigation should be formalised and thoroughly documented, as they form the basis of the resolution adopted by the directors. 

The decision to implement an AI system must therefore be based on a comprehensive assessment of its impact on the company’s organisation, production processes and development strategies, weighing both current and future risks, and ensuring adequate organisational, administrative and accounting structures are in place. 

Implementing a high-risk AI system requires rigorous due diligence to identify and mitigate the risks associated with adopting an AI system within the company’s organisation. These risks may also need to be disclosed in corporate sustainability reports, which highlight risks and opportunities according to a double materiality assessment, considering both impact and financial factors. 

Previously published by Wolters Kluwer in Diritto & Pratica del Lavoro (on issue no.37/2025).