Collective dismissal: the spotlight is on the equivalent professional skills By Marco Tesoro and Sharon Reilly By Court ruling no. 23347/2018 published on September 27°, 2018, the Court of Cassation focused again on the distinction between the concepts of “identical duties” and “equivalent professional skills”, essential for the correct application of the selection criteria applied in collective dismissals (article 5, Law 223/1991). The case stems from the fact that an employee was dismissed within the context of a collective dismissal procedure due to the fact that she worked in the business unit that was to be closed. The employee challenged the dismissal in Court claiming violation of the abovementioned selection criteria, because the Company had not compared her job title and duties with other fungible equivalent positions within the company. In particular, the plaintiff stated that one of her colleagues had not been involved in the selection comparison exercise, despite the fact that at the beginning of the collective procedure she had the same job title, and afterwards she was given another one. The Company rebutted the employee’s claims on the grounds that, according to Case law, the employer can lawfully make the comparison only amongst the employees working in a specific business unit, when the reorganization only involves such a business unit. The Company also rebutted the claims with reference to the plaintiff’s colleague, stating that she was previously given the same job title due to a peculiarity. Both the Tribunal and the Court of Appeal upheld the plaintiff’s claims, and the Court of Cassation confirmed the decision. The Court of Cassation declared the violation of the selection criteria on the grounds that the company had not compared equivalent positions in the company. The Court, referring to its own previous Case law (Cass. no. 6147/2018), confirmed the principle that, when a reorganization only involves a specific business unit, the employer can lawfully select the redundant employees only taking account of those working in such a business unit or department, but only when such employees cannot be assigned to positions held by their colleagues in other business units. For this reason, according to the Court of Cassation it is unlawful to select the redundant employees only from amongst those assigned to the business unit to be closed, and not to consider if their professional skills are equivalent to those held by their colleagues working in other business units. Therefore, the distinction between identical duties and equivalent professional skills is crucial, meaning “the totality of aptitudes, qualities and potentialities allowing a qualitative distinction or homogenization of professional skills instead of simple differences between the duties actually performed”, and companies must make reference to such wider parameters in order to lawfully apply the selection criteria. The decision of the Court confirms and underlines the need to provide an accurate analysis of the entire workforce before selecting the redundant employees within the collective dismissal procedure, even when the reorganization only involves one specific business unit. In particular, the analysis must take into consideration the employees’ professional skills, not just their formal job titles.