Abstract
In an open-ended employment contract, termination is, by definition, a discretionary right. Both the employer and the employee may withdraw from the employment relationship at any time, provided that the applicable notice period is observed in accordance with the terms and conditions set out in the relevant collective labor agreement, pursuant to Article 2118 of the Italian Civil Code.
However, what occurs when the parties agree contractually to extend the notice period? Is such an agreement permissible? Is it valid? And, most importantly, is it genuinely advantageous for the employer?
The function of notice: a balance between freedom and stability
The minimum duration of notice is not left to the parties’ unfettered discretion. It is determined by the applicable National Collective Labor Agreement (CCNL), which establishes different notice periods and modalities depending on the employee’s duties and length of service.
Notice is not a merely formal clause; rather, it constitutes a protective legal mechanism. Its purpose is to safeguard the party that does not initiate termination, mitigating the adverse consequences of the sudden cessation of the employment relationship:
- where termination is initiated by the employee, the employer requires time to reorganize operations, identify a replacement, and ensure business continuity.
- conversely, where termination is initiated by the employer, the employee is entitled to a transitional period in order to seek alternative employment.
Precisely because of this protective function, leaving the entire regulation of notice to the parties’ contractual autonomy would be problematic, as it could expose the employee — or, in certain circumstances, the employer — to excessive contractual imbalances and unjustified prejudice.
Accordingly:
The notice period established by collective labor agreement cannot be reduced, as such reduction would constitute a modification in peius of the employee’s conditions.
Notice is not required solely in cases of termination for just cause (“giusta causa”), i.e., where the fiduciary bond has been irreparably breached — for instance, where the employer fails to pay wages or the employee misappropriates company assets.
Outside such circumstances, compliance with the notice period is the general rule. In the event of non-compliance, the terminating party is required to pay the indemnity in lieu of notice.
Is derogation from the CCNL permissible? The limits established by the Supreme Court
A different issue arises with respect to extending the notice period.
Case law has held that an agreement providing for a longer notice period than that established by the collective agreement may be valid, subject to certain conditions.
The Italian Supreme Court, in judgment no. 4991 of 2015 — still consistently followed by lower courts — upheld the validity of a clause providing for a longer notice period than that established by the applicable collective agreement, provided that:
“Such possibility of derogation is contemplated by the collective agreement and […] the employee receives additional economic or career-related benefits as consideration for the obligation undertaken.”
Thus, this is not an unlimited freedom.
An extension is valid only where:
- The CCNL expressly allows for derogation (e.g., “unless otherwise agreed by the individual agreement”);
- The additional constraint imposed upon the employee is balanced by adequate economic or professional benefits;
The duration of the extended notice is proportionate to the employee’s role and responsibilities.
For example, the Tribunal of Udine (7 February 2023) upheld the validity of a 24-month stability covenant accompanied by a 6-month notice period.
Another relevant aspect concerns the temporal effectiveness of such agreements. Frequently, the extended notice period is limited in duration — for example, applicable only during the first years following hiring. In the case mentioned above, once the 24-month period had elapsed, the employment relationship reverted to being governed by the ordinary notice term provided by the CCNL.
For which roles does an extended notice period make sense?
An agreement extending the notice period is not a standard clause to be inserted automatically into every employment contract.
Its practical justification arises primarily in relation to highly specialized roles, characterized by expertise that is difficult to source on the market or whose replacement would entail significant costs — whether due to the complexity of the role or the accumulation of strategic know-how over time.
In such contexts, a sudden departure — even in compliance with an ordinary notice period that may be relatively short — may cause substantial organizational disruption, undermine operational continuity, and dissipate significant investments made in training and professional development.
From the employer’s perspective, such an agreement may therefore function as a mechanism of planned stability, allowing the company to structure strategic investments in human capital within the framework of a stable and long-term collaboration.
The situation differs markedly in the case of roles readily available on the labor market. Providing for an extended notice period for a junior sales representative or other standard positions may prove strategically disproportionate and economically counterproductive.
It must be borne in mind that extending the notice period is not cost-neutral. If greater stability is required of the employee, the latter will legitimately expect additional economic consideration or compensatory professional benefits.
There is, however, a further profile that is often underestimated.
If the employment relationship deteriorates and the employee places the employer in a difficult position — without, however, meeting the threshold for termination for just cause (for example, deterioration of client relationships, lack of cooperation, operational delays, or loss of motivation) — the employer wishing to terminate the relationship prior to the expiry of the agreed extended notice period will nonetheless be required to pay the indemnity in lieu of the extended notice.
Such indemnity does not constitute a penalty clause and cannot be reduced by the court pursuant to Article 1384 of the Italian Civil Code. Case law is now consistent in recognizing the alternative nature of the obligation and the legitimacy of claiming the indemnity in the event of early termination.
In other words, the longer the agreed notice period, the higher the cost of early exit — and there are few practical mechanisms to avoid this consequence.
For this reason, if not carefully calibrated to genuinely strategic roles, an agreement extending the notice period may transform from a protective instrument into an unnecessary source of economic rigidity.
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Data di pubblicazione: 4 Marzo 2026
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Debora Teruggia
Laureata presso l'Università degli Studi di Milano, praticante avvocato appassionato di Diritto del Lavoro e Diritto di Famiglia.