La Cassazione sulla vicenda dei riders di Foodora a cura dell'Ufficio Salute e Sicurezza

30 gennaio 2020 – Con la sentenza n. 1663 del 24 gennaio 2020 la Corte di Cassazione ha confermato la sentenza della Corte di Appello di Torino, respingendo il ricorso della s.r.l Foodinho (ex Foodora).
Nella sentenza di secondo grado infatti la Corte di Appello ha accolto la domanda di alcuni riders di Foodora di vedere applicato alla propria attività lavorativa l’art. 2, comma 1, del d.lgs. n. 81/2015, ritenendo tuttavia corretta la qualificazione del rapporto di lavoro come autonomo. Il giudice di secondo grado, pertanto, aveva fatto rientrare le collaborazioni ex articolo 2, comma 1, d.lgs. n. 81/2015 in un terzo genere di attività lavorativa, collocato a metà strada tra l’autonomia e la subordinazione, e contraddistinto da una propria identità e da una conseguente applicazione selettiva della disciplina del lavoro subordinato, limitata alle norme riguardanti la sicurezza e l’igiene, la retribuzione, i limiti di orario, le ferie e la previdenza; rimanendo escluse le disposizioni sul licenziamento.
Nel motivare la sentenza la Corte di Cassazione  ha ricostruito tutta la vicenda giudiziaria del caso Foodora, nonché l’iter normativo che ha portato il Legislatore ad inserire l’articolo 2, comma 1, nel d.lgs. n. 81/2015.
Secondo la Suprema Corte, ai fini di una corretta interpretazione, la norma introdotta nell’ordinamento nel 2015 deve essere contestualizzata. Essa infatti si inserisce all’interno di una serie di interventi normativi volti a far fronte alle rapide e profonde trasformazioni che hanno interessato il mondo del lavoro nell’ultimo decennio.
In tal senso, la Corte di Cassazione ha evidenziato che non ha senso interrogarsi sul se tali forme di collaborazione siano collocabili nel campo della subordinazione ovvero dell’autonomia perché ciò che conta è che per esse, in una terra di mezzo dai confini labili, l’ordinamento ha statuito espressamente l’applicazione delle norme sul lavoro subordinato, disegnando una norma di disciplina.
Il Supremo Collegio ha osservato che si tratta di una scelta di politica legislativa volta ad assicurare a tale categoria di lavoratori la stessa protezione di cui gode il lavoratore subordinato, al fine di “tutelare prestatori evidentemente ritenuti in condizione di debolezza economica, operanti in una zona grigia tra autonomia e subordinazione, ma considerati meritevoli comunque di una tutela omogenea”. La Suprema Corte ha puntualizzato che tale intento protettivo è stato recentemente confermato dalla novità inserita in materia dal DL 101 del 2019 (come modificato in sede di conversione dalla legge n. 128/2019) – anche se non applicabile al caso in esame nella sentenza perchè antecedente – la quale “va certamente nel senso di rendere più facile l’applicazione della disciplina del lavoro subordinato, stabilendo la sufficienza, per l’applicazione della norma, di prestazioni “prevalentemente” e non più “esclusivamente” personali, menzionando esplicitamente il lavoro svolto mediante piattaforme digitali, e, quanto all’elemento della “etero.organizzazione”, eliminando le parole “anche con riferimento ai tempi e al luogo di lavoro”, mostrando chiaramente l’intento di incoraggiare interpretazioni non restrittive di tale nozione”.
Nella sentenza in analisi infatti è stato altresì precisato che può essere ravvisata etero-organizzazione, rilevante ai fini dell’applicazione della disciplina della subordinazione, anche quando il committente si limiti a determinare unilateralmente il quando e il dove della prestazione personale e continuativa.
Dunque, la Corte di Cassazione nella sentenza n. 1663/2020, ha formalmente confermato la sentenza della Corte di Appello di Torino ritenendo tuttavia che non sia necessario inquadrare la fattispecie in un terzo genere, intermedio tra il lavoro autonomo e la subordinazione, con la conseguente esigenza di selezionare le norme sulla subordinazione da applicare.
Secondo la Corte di Cassazione, al verificarsi delle caratteristiche delle collaborazioni individuate dall’articolo 2, comma 1, del d.lgs. n. 81/2015, si deve imperativamente applicare la disciplina della subordinazione integralmente.

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