To terminate an employment relationship, it is usually necessary to resign if the employee wishes to terminate the contract. If the employer does not want to continue the employment contract, the employee is given the layoff. However, there is a third, less common, option that can bring benefits to both parties, namely the consensual termination of the employment relationship. In this way it is possible to dissolve the employment contract first under various conditions. However there are some rules to be respected. In the next paragraphs we explain better what it is and when it is appropriate to resort to a consensual resolution to terminate the employment relationship.
- What is the difference between the consensual termination of the employment relationship and the dismissal?
- Legal guidelines for consensual termination
What is the difference between the consensual termination of the employment relationship and the dismissal?
A consensual termination of the employment relationship is an agreement between employee and employer to terminate an employment contract without resorting to dismissal or resignation.
While the consensual termination of the employment relationship is agreed by both parties involved , the dismissal is to be considered a unilateral declaration by the employer or by the employee in the event of resignation, to terminate the employment relationship. Both options are valid even if one of the two parties does not agree to the dissolution of the contract. Instead, the consensual termination is valid only if both parties agree.
Thanks to a consensual termination of the employment relationship, the employer and the employee agree on the termination of the employment contract, from which benefits may arise. The employer thus has the advantage of not having to undergo limitations of the employment contract or of the layoff, but also employees can take advantage of a consensual termination, for example for a reduction in the actual day of layoff or to agree on a greater liquidation .
Although a consensual termination of the employment relationship brings with it more freedom of action , there are some rules to be respected, as established by article 1372 of the Civil Code . Before 12 March 2016 there were no particular requirements to be fulfilled, while now it is necessary to formalize the relationship with the electronic compilation of some forms made available by the Ministry of Labor.
The advantage with a consensual termination of the employment relationship consists in greater freedom and the possibility of better agreeing some aspects for the termination of the contract. It is important to establish the effective date , i.e. when the consensual termination begins. The effective date can be immediate or deferred : in the first case, the consensual termination is to be considered valid from the moment the agreement is signed; in the second, the subjects involved agree that the employee works regularly until the termination of the employment relationship, or goes on leave or enjoys the remaining holidays.
In addition to the normal liquidation, it is also possible to agree on an additional sum of money , on which neither the employee nor the company pay the INPS contributions. In conclusion, with a consensual resolution, a personalized agreement is signed between the company and the employee, which can bring benefits for both.
Advantages of consensual termination over dismissal
Like the dismissal, the employment relationship also ceases with the consensual termination. As already written, an agreement of this type can be more advantageous for the employee than the dismissal or resignation, because he has the possibility to agree on aspects that are not foreseen by the normal dismissal process. The employment contract can thus end more flexibly and is adapted to your needs .
Benefits for the employer
No dismissal ticket: in the case of consensual termination of the employment relationship, no company contribution of withdrawal is due, except for those cases that give entitlement to the NASPI unemployment benefit.
No formal dismissal process: opting for a consensual termination it is not necessary to follow the normal dismissal procedure and you can proceed faster with the termination of the employment relationship.
Early timing : with the consensual termination, it is not related to the timing foreseen by law for the dismissal, but the date of termination of the relationship can be agreed.
Benefits for employees
Early timing: if the employee needs to terminate the employment relationship, for example because he has found a new job, with a consensual resolution there is no need to wait for the time provided for by law for the dismissal.
Good exit: in some cases, in addition to the TFR, it is possible to agree on the receipt of an additional sum of money, which is paid at the moment when the consensual termination is chosen.
Personalization: thanks to a consensual resolution, it is always possible to insert particular conditions that are not normally present by law, provided that both parties agree.
Disadvantages for the employer
Reduced layoff times: the employer loses an employee early and must therefore find a replacement in less time. In this case it is disadvantageous for the company to resort to a consensual termination of the employment relationship, as the employee will no longer work in the company for the entire time established by law.
Higher costs: a consensual termination may be subject to the fact that the employee signs only if he is granted a good exit and / or different conditions.
Disadvantages for employees
Dismissal protection: not following the normal dismissal process, the employee may be less protected in some respects, departing from the consensual termination from a classic termination of the employment relationship.
Early dismissal: the starting date for the termination of the employment relationship can be very short and even coincide with the date of signature of the same.
Legal guidelines for consensual termination
While there are fewer limitations and more freedoms with a consensual termination of the employment relationship, this does not mean that there are no legal directives to follow. First of all, to avoid the illegal practice of resignation in white , from 2016 it is necessary to send the required documentation online , as established by the Legislative Decree. n. 151/2015. The employee must therefore send the forms to the employer and the Territorial Labor Inspectorate via PEC. It is also possible to send the file independently on the Cliclavoro website .
However, a consensual termination of the employment relationship is not irrevocable: in fact, there are 7 days from the date of transmission of the form to revoke it, always electronically.
There is a special procedure for some subjects , including:
- an employee during pregnancy ;
- an employee during the first 3 years of the child’s life or in the first 3 years of reception of the adopted or foster child.
In the presence of these cases, the consensual termination must be validated before the Territorial Labor Inspectorate, responsible for the city where you work. Subsequently, the employee will be summoned by the Labor Inspectorate to ascertain the employee’s effective will to terminate the employment relationship; Finally, the appropriate office issues a validation measure, which is sent to the employee and employer within 45 days of the request.