Italy: Employee Reinstated in the Case of Failure to Pass Probationary Period Agreed on the Basis of a Null and Void Trial Clause

Dismissal for failure to pass a probationary period on the basis of an agreement affected by “genetic nullity” – i.e. a trial clause deemed non-existent because vague – constitutes a hypothesis of unjustified dismissal due to the non-existence of the material fact upon which the dismissal is based.

Non-existence of the disputed fact, non-existence of the economic fact, non-existence of evidence: the penalty must be identical. Dismissal for failure to pass a probationary period on the basis of an agreement affected by “genetic nullity” – i.e. trial clause deemed non-existent because vague – constitutes, in fact, a case of unjustified dismissal due to the non-existence of the material fact since “the fact on which the justifying reason is based does not exist.” In such cases, the application of the so-called “attenuated” reinstatement protection provided for in Article 3, paragraph 2, of Legislative Decree No. 23/2015, as constitutionally interpreted by the Constitutional Court in its decision No. 128 of 2024, is required. These are the conclusions reached by the Supreme Court in its recent judgement no. 24201 of 29 August 2025, ruling on a case in which an employee had brought an action before the Court of Venice to obtain either the trial period agreement to be declared null and void on the grounds of its absolute vagueness and the consequent declaration of unlawfulness of her dismissal for alleged failure to pass the probationary period.

The Court of Appeal of Venice, reversing the first-degree judgment, declared the trial agreement null and void, as it did not describe “even in minimal terms the duties subject to trial” and, as a result, ordered the employer to reinstate the employee, also applying the compensation protection provided for in cases of inexistence of the material fact.

The decision was, therefore, challenged by the company before the Supreme Court, on the grounds that the Court of Merits had, furthermore, erroneously considered applicable reinstatement, together with the relevant compensation, as provided for in Article 3, paragraph 2, of Legislative Decree No. 23/2015, and not the sole compensatory protection provided for in paragraph 1 of the same article.

The Supreme Court, which was requested to rule on the matter, preliminarily clarifies in its decision that the issues arisen as consequences of the genetic nullity of the trial agreement must be resolved considering the “substantial change in case law” represented by the Constitutional Court ruling no. 128 of 2024. Such decision of the Constitutional Court declared Article 3, paragraph 2, of Legislative Decree No. 23/2015 unconstitutional in the part where it failed to apply reinstatement to alleged (and unproven) justified objective reason, in the case the material fact alleged by the employer resulted not-existent in court, compared to the fact that reinstatement was a sanction already set forth for disciplinary dismissal. That said, the Supreme Court refers to the steady case law according to which, in the event of invalidity of the trial period clause, the employment must be considered on open-ended basis as of its commencement, with the consequence that the dismissal grounded on failure to pass the trial period constitutes an ordinary dismissal “subject to judicial assessment of the existence or otherwise of just cause or justified reason.” Under the contractual regime of “increasing protections,” such employment termination has, thus, been so far subject to the purely compensatory protection referred to in Article 3, paragraph 1, of Legislative Decree No. 23/2015, as this case cannot be referred to any of the typical cases of reinstatement provided for in the following paragraph 2. Presently, however, this approach must necessarily be revised in light of the principles established by the Constitutional Court in its ruling no. 128 of 2024, with the consequence – as lastly indicated by the Supreme Court – that dismissal for alleged failure to pass an inexistent trial – based on an agreement affected by “genetic nullity” – must be considered, to all intents and purposes, an unjustified dismissal due to the inexistence of the fact, and as such attributable to the provision of Article 3, paragraph 2, of Legislative Decree No. 23/2015, as constitutionally interpreted.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• Dismissal for failure to pass a probationary period on the basis of an agreement affected by “genetic nullity” – i.e. a trial clause deemed non-existent because completely vague – constitutes a hypothesis of unjustified dismissal due to the non-existence of the material fact, since the fact on which the justifying reason for dismissal is based does not exist.
• In its decision, the Supreme Court refers to steady case law references, according to which, in the event of the invalidity of the trial period clause, the employment must be considered on open-ended basis as of its commencement, with the consequence that the dismissal grounded on failure to pass the probationary period must be considered, to all intents and purposes, an unjustified dismissal due to the inexistence of the fact, and as such attributable to the provision of Article 3, paragraph 2, of Legislative Decree No. 23/2015, as constitutionally interpreted.