Trasformazioni della figura del datore di lavoro e flessibilizzazione delle regole del diritto

The essay analyses the changes of the nature of the employer following the great economic and social transformations that have been taking place since the end of the last century, as well as the answers given by the labour law to address them. It is first described the “internal” fragmentation of the enterprise through subcontracting and outsourcing, a process that has given a new importance to the issue of how to identify the employer; it is then examined the “external” fragmentation of the enterprise, due to the enlargement of the market to a transnational dimension, that has increasingly given the employer the power to choose the law which will rule the employment relation. The essay describes also how labour law has tackled the breaking down of employer’s contractual liability and the new immunities granted to employers in the exercise of his or her managerial powers and prerogatives as a consequence. The new legal protection techniques are of a relational kind, i.e. they govern relations where rights and duties of the parties are not entirely defined a priori and they do so by adopting functional criteria of allocation of employer’ liability among different economic entities and by striking the balance between different interests through the application of the general clauses and of the principles of equality and reasonableness. The result is a considerable flexibilitation of the legal rules and a higher level of uncertainty and unpredictability of the law, but at the same time the discovery of new functions of fundamental principle and rights.