Italy: Dismissals Cannot Be Justified if Employee Participated in a Strike

The dismissal can never be grounded on the employee’s participation in a strike, even when the strike has not been formally announced by a trade union and regardless of the size of the company, provided that it is implemented collectively, for the protection of interests attributable to the generality of workers and in compliance with the so-called external limits established by constitutional and ordinary case law.

The Supreme Court, with ruling no. 11347 of 30 April 2025, decided a case of an employee dismissed for joining a strike not formally called by any trade union, which involved three workers out of the five employed by the company at the time. The Court of Appeal, in confirming the nullity of the dismissal, highlighted that the strike, even if spontaneous, constitutes the exercise of the right provided for by Article 40 of the Constitution and enjoys the protection of Article 15 of the Workers’ Statute, which prohibits any discriminatory act determined by the exercise of trade union rights, including the one to strike. The Supreme Court, excluding the occurrence of an essential public service with application of the relevant discipline in the case at stake, confirmed this approach, stating that the right to strike, when exercised collectively and in the context of private work, is not subject to binding forms of proclamation.

In this perspective, the Supreme Court specifies that what is relevant for the lawfulness of the strike is the existence of a common purpose between the workers involved and the aim of protecting collective interests, regardless of the form or origin of the self-protection action. The absence, therefore, of a union proclamation, of notice or of activation of any conciliation procedures cannot determine the unlawfulness of the strike nor gives the employer any ground for the dismissal.

On the contrary, the Supreme Court recalls that the exercise of the right to strike may be unlawful if it could irreparably damage not the production, but the potential productivity of the company. This means that the possibility for the entrepreneur to continue carrying out its business is compromised, the plants are destroyed or permanently unusable, with danger for the company as an institutional organisation, not as a mere management organisation, with impacts on the general interest in preserving employment levels. In such cases, the judge is called upon to carry out a specific and case-by-case assessment, which takes into account the specific conduct and the concrete damages possibly caused to constitutionally protected interests, such as the right to life, to the safety of people and to the stability of the company.

Finally, the Court clarifies that the dismissal for retaliatory reasons or connected to the exercise of fundamental rights, such as the one to strike, is null and void and the reinstatement protection provided for by Article 2 of Legislative Decree no. 23 of 2015 applies.

In conclusion, the judgement in question confirms the case law that gives a constitutionally oriented interpretation of Article 15 of the Workers’ Statute and extends its protective scope to all collective conducts falling under the substantial notion of strike, with the consequent nullity of the dismissal and obligation to reinstate the worker.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• The ruling of the Supreme Court no. 11347 of 30 April 2025 confirms that employees cannot be dismissed for participating in a strike, even if the strike has not been formally declared by a trade union and regardless of the company’s size, as long as the action is carried out collectively, aims at protecting the interests of the broader workforce, and respects the external limits set by constitutional and ordinary case law.
• In such context, the dismissal motivated by retaliation or linked to the exercise of fundamental rights, such as the one to strike, is null and void, and the employee is entitled to reinstatement under Article 2 of Legislative Decree No. 23 of 2015.