An employee of a cooperative, who had been assigned to carry out a contract at a client company, was transferred following the client’s withdrawal of its ‘approval’.
Following an appeal, the trial judges had ruled that the transfer was unlawful, holding that such a measure could only have been lawfully adopted on the basis of proven technical, organisational and operational grounds “distinct from and in addition to the client company’s exercise of its satisfaction clauses”.
The Supreme Court, to which the employer had appealed, nevertheless ruled otherwise in its recent judgment no. 4198 of 25 February 2026.
The Court of Cassation has, in fact: a) emphasised its established position, according to which judicial review of the aforementioned ‘requirements’ is aimed solely at ascertaining whether the employer’s decision is consistent with the typical objectives of the business, “and cannot be extended to the merits of the business decision”; b) recalled several precedents – including those of the Joint Divisions – in which it was held that even ‘incompatibility with the working environment’ in which the work is performed was ‘deemed sufficient’ to satisfy the conditions for transfer under Article 2103 of the Civil Code.
The Court has therefore reaffirmed the principle “that the transfer of an employee due to organisational incompatibility, arising from the state of disorganisation and dysfunction of the production unit, must be attributed to the technical, organisational and production requirements referred to in Article 2103 of the Civil Code, rather than – albeit atypically – to punitive disciplinary grounds, with the consequence that the legitimacy of the employer’s transfer measure is independent of the fault (in the broad sense) of the transferred workers, as well as of compliance with any other substantive or procedural safeguards established for disciplinary sanctions”.
On the basis of the foregoing, the Court therefore quashed the judgment on the merits for failing to comply with these principles and, considering “in particular that, whilst a situation of conflict between colleagues, with a negative impact on individual performance and thus on the business organisation, may justify a transfer, in the same way the client’s disapproval of the presence of the worker providing a contracted service (…) makes a change of workplace, in view of the conflict that has arisen between the client and the service provider, one of the reasonable options that the contracting employer may adopt on a technical, organisational and production level, not least to avoid the far more detrimental measures of terminating the employment relationship”.