According to the Supreme Court, to establish the right to obtain compensation for loss of opportunity due to the employer's failure to assign individual objectives related to a bonus scheme, employees have the burden of proving that, if the objectives had been assigned, they would have been able to achieve them. The case arises from an action brought by several employees seeking compensation from their employer for loss of opportunity due to the employer's breach of its obligation under a trade union agreement to assign them individual targets for the purpose of obtaining a performance bonus. Reforming the first court's decision, the Court of Appeal rejected the employees' claim, ruling that they had not provided sufficient evidence to demonstrate that, if the targets had been set, they would have had a realistic chance of achieving them given the ‘working methods adopted, the type of work performed, and their professional characteristics and abilities’. The employees, therefore, appealed to the Supreme Court, challenging the decision of the second instance judges because, by ruling out that the employees had demonstrated not only the employer's breach of contract but also the possibility of obtaining variable remuneration, it had placed the burden on the employees to prove the targets that the company would likely have assigned to them. The Supreme Court, in its ruling no. 1325 of 2026, confirmed the second court's decision, noting, principally, that the employer's failure to indicate the objectives for obtaining variable remuneration does not constitute a condition that causes damage per se. The damage caused by the loss of opportunity represents the actual loss of the possibility of obtaining a future beneficial result or achieving a future economic advantage. The burden of proof lies with the damaged party, who must demonstrate that the damaging event was likely to result in the loss of opportunity, i.e. the loss of the possibility of obtaining a future economic advantage and may also be discharged through presumptions pursuant to Article 2729 of the Italian Civil Code. Regarding the quantification of the damage, it is necessary to consider, as a basic parameter, the financial advantage the damaged party would have obtained in the event of success, reducing it proportionally on the basis of the concrete chances of realising it. If it is not possible to adopt this mechanism, the judge shall proceed with the settlement on an equitable basis pursuant to Article 1226 of the Italian Civil Code. Clarifying the above, the Court noted that the claimants attributed the right to obtain compensation for damages exclusively to the employer's misconduct, without, however, indicating any specific allegation from which it could be inferred that they could have achieved objectives assigned by the employer. According to the Court, the above allegations are essential to establish a compensable loss of opportunity, as this is a type of damage that requires proof not only of non-performance but also of the probable possibility that, had the objectives been assigned, the employees would have been able to achieve them.
2026 - Morri Rossetti
