Italian Supreme Court judgment no. 25270/11: Who is the employer? The company hiring the employee or the company benefitting from the employee’s services?

The case at hand regarded an employee who had been hired by a controlled company, but whose services had, in fact, been provided in accordance with the instructions given by the controlling company (who was a well-known car manufacturer).

 After having acquired the necessary evidence, the court of first instance held that, during the course of the employment relationship, the controlling company had, even though it had never formally appeared as the employer, in fact benefitted from the services provided by the employee, contributing to the latter’s activity both from an organizational and an economic point of view.

The Supreme Court ruled that whosoever benefits from the employee’s services must perform all of the obligations arising from the employment relationship in question.

It would appear appropriate to point out, in relation thereto, that the lower courts have recently reaffirmed the principle that the real employer is whoever benefits from the services provided by the employee in question, even if the latter has been formally hired by another (apparent) employer and regardless of any inquiries that may be conducted into the execution of fraudulent agreements between the apparent and the real employer (cfr. Italian Supreme Court United Sections judgments nos. 22910/2006 and 19931/2010).

It would appear, therefore, that the Supreme Court has given the correct ruling in above-described matter since the true employer was not the one who hired the employee in question but rather the one who, as a matter of fact, decided how much the employee should earn and what objectives should be pursued by the latter, as well as assessing the results achieved in relation thereto and incurring the related social security costs.

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