Severance pay is in the nature of remuneration and deserves protection even in the event of non-payment.

This was recently recalled by the Court of Cassation, which held that the employee’s claim for severance pay should be admitted as a preferential claim in bankruptcy.

In fact, this is a claim that enjoys special protection under the (then current) bankruptcy law.

On the merits, the Court ruled that the employer company had to admit the worker’s claim for the sum defined for severance pay, with the addition of interest.

The decision thus sanctioned the protection of the worker’s right to have his claim for severance pay recognised, with the consequent acceptance of all his claims.

The Court of Cassation reaffirmed that severance pay is in the nature of remuneration and that the employee is entitled to file a claim even in the event of non-payment by the employer.

The case concerned an employee who had applied for admission to the bankruptcy estate for severance pay accrued after 1 January 2007, to be allocated to the INPS Treasury Fund (since the company had more than 50 employees). However, the claim was partially rejected because the receiver had not sent the necessary form to INPS.

The Court of Reggio Calabria partially admitted the claim for the period worked with the bankrupt company but excluded the TFR accrued with the transferor company for lack of sufficient proof, despite the CUD. It recognised the continuity of the employment relationship, but for the TFR prior to 2007, it applied the (then) previous legislation (art. 2 l. 297/1982), excluding the insinuation. For the post-2007 period, he rejected the request due to uncertainty over payment to INPS.

The appellant challenged the decree of the Court of Reggio Calabria by means of an appeal in cassation, divided into two grounds. He argued that the TFR indicated in the CUD represented a certain and adequately proved credit. Moreover, he contested the non-recognition of the TFR accrued prior to 2007, arguing that, according to the case law of legitimacy, also the sums not paid should be admitted to the liabilities.

The appeal in cassation was based on two grounds

• infringement of the rules on the transfer of a branch of business, for failing to recognise the employee’s entitlement to the severance indemnity credit;
• further violation of the rules on severance indemnity and the burden of proof for having excluded admission to the liabilities due to the failure to distinguish between severance indemnities accrued before and after 1 January 2007.

The Court of Cassation upheld the appeal, annulled the Court’s decision and admitted the worker’s claim.

The firm remains at your disposal for any clarification.