In Italy, the parties to employment contracts of indefinite duration may agree to incorporate the so-called “stability” clause in the contract through which both (or just one of them) undertake not to withdraw from the signed contract for a set minimum period of time.
Except for termination for cause, to which the mandatory rule of article 2119 of the Italian civil code applies, no limit is placed on private autonomy as regards the right to withdraw from the employment contract. Therefore, the employee can freely dispose of it by agreeing to guarantee a minimum duration of the relationship, as long as it is limited in time, which involves compensation for damages in favour of the employer in the event of non-compliance with the minimum duration period.
Moreover, when this clause is incorporated, it is necessary to provide a consideration (pursuant to art. 36 of the Italian Constitution) that is proportionate to the commitment that the bound party assumes. In the balance of the contractual positions, the consideration of the minimum guaranteed duration clause in the interest of the employer is therefore necessary, but can be freely established by the parties and may consist in the reciprocity of the stability commitment they have assumed or in a different benefit to be paid by the employer, consisting of a salary increase or a non-monetary obligation, provided it is not symbolic and proportionate to the sacrifice taken by the worker (see Italian Supreme Court, Labour Section no. 14457/17).
(Milan Office – Marcello Giordani – 0039 (0)2 39680538)
