2026-11-02 - AI and employment in Legislative Decree 179/2026: automated decisions, reasons, safety and nullity
This contribution continues the series block devoted to
Legislative Decree no. 179 of 7 October 2026
, the second decree implementing Italian Law 132/2025. The employment provisions are brief, but they address one of the areas where AI systems are most widespread and most sensitive: decisions on the employment relationship (Article 41), health and safety (Article 42), and employment services (Article 48).
What Article 41 provides
Without prejudice to Article 22 of
, an employer that uses AI systems, as defined in Article 3(1) of the AI Act, in decision-making processes concerning the employment relationship must ensure that final decisions on the establishment, modification or termination of the relationship, “ivi compresi i provvedimenti disciplinari e le valutazioni delle prestazioni” (including disciplinary measures and performance evaluations), are not taken solely based on automated processing, in accordance with Article 11 of
. The final decision is in any case reserved to a natural person exercising effective and autonomous power (Article 41(1)).
The provision is completed by:
- the exclusion of candidate search and selection activities from final decisions on the establishment of the relationship, even where they result in non-admission to the subsequent stages of selection (paragraph 1);
- the rule that the worker’s consent is not an exception to the prohibition (paragraph 1);
- respect for the worker’s dignity and privacy and for the principle of non-discrimination (paragraph 2);
- the prior information obligation under Article 1-bis of Legislative Decree 152/1997 (paragraph 3);
- the worker’s right to obtain, on request and with the involvement of a natural person, intelligible reasons for the decision concerning them, indicating any influence of AI systems on the decision-making process and the main parameters considered, without prejudice to the right of access and the rights under Articles 13, 15 and 22 of the GDPR (paragraph 3);
- the nullity of a dismissal served in breach of paragraph 1 and of decisions taken in breach of the same paragraph (paragraph 4).
What has changed compared with the draft
A comparison with the draft sent to Parliament shows four changes, all in the direction indicated by the opinions.
AspectDraft (Government Act 421)Legislative Decree 179/2026, Article 41Origin
Scope of decisionsEstablishment, modification, termination, disciplinary measuresPerformance evaluations are addedOpinion of the Garante, which had suggested extending the prohibition to evaluative decisions
Candidate selectionNo clarificationCandidate search and selection excluded from final decisions on the establishment of the relationshipPress release no. 185; observation of the Chamber's Committees
Worker's consentNo clarificationConsent is not an exception to the prohibitionObservation of the Chamber's Committees
NullityDismissal onlyDismissal and decisions taken in breach of paragraph 1Observation of the Chamber's Committees
The sources are the
opinion of the Italian Data Protection Authority of 14 July 2026
, the
opinion of Committees IX and X of the Chamber of Deputies of 29 July 2026
and
press release no. 185 of the Council of Ministers
(all in Italian). The press release mentioned only the clarification on selection: the other three changes emerge from comparing the texts.
Two entire articles are also new compared with the draft: the one on health and safety at work (Article 42) and the one on the use of AI in employment services (Article 48).
The link with the GDPR
The provision is without prejudice to Article 22 of the GDPR, which prohibits decisions based solely on automated processing that produce legal effects concerning the data subject or similarly significantly affect them, subject to the exceptions in paragraph 2, which include explicit consent. The national rule goes further on two levels: it reserves the final decision to a natural person in all cases, ruling out that the worker’s consent can justify an automated decision, and it attaches nullity to the act in case of breach.
In my view, the exclusion of selection activities deserves careful reading. It delimits the scope of the national rule but does not affect Article 22 of the GDPR, which remains applicable. The Court of Justice has interpreted the notion of a relevant decision broadly, holding that it may arise even where an automated result, produced by one party, plays a determining role in the decision of another (
judgment of 7 December 2023, Case C-634/21, SCHUFA
). Automated screening that in practice excludes a candidate is therefore not outside all rules merely because it is not a final decision under the national provision.
Health and safety: AI in the risk assessment
Article 42 brings AI within the framework of Legislative Decree 81/2008 on health and safety at work. Article 42 (2) assesses the use of AI systems that affect work organization, production rhythms, how work is performed, or safety-relevant decision-making as part of the risk assessment under Article 28 of that decree. Employers ensure workers receive adequate information and training on the specific risks associated with using these systems and on the prevention and protection measures adopted (Article 42(3)).
The Ministry of Labor coordinates measures to ensure that introducing AI in the workplace respects health and safety protection and promotes its responsible use as a tool for preventing accidents and occupational diseases, in liaison with the National Labor Inspectorate (Article 42(1) and (4)).
Employment services
Competent administrations and bodies authorized or accredited to provide employment services may use AI systems for guidance, job matching, skills identification, and support for labor market integration, provided that human oversight, decision transparency, and protection of users’ and workers’ rights are ensured (Article 48).
The link with the AI Act
Systems intended for recruitment or selection, decisions on terms of employment, promotion or termination, task allocation and monitoring of workers are classified as high-risk by point 4 of Annex III to
. For them, the requirements and obligations of Sections 1, 2 and 3 of Chapter III, including the information workers’ representatives must receive from deployers, will apply from 2 December 2027, under the timetable amended by
. The prohibition of emotion recognition systems in the workplace, save for medical or safety reasons, already applies.
The national rule therefore operates at a time when the European obligations on high-risk systems do not yet apply, and it anticipates part of their logic in the employment relationship: it takes effect on 23 October 2026.
Concluding remarks
For employers, the practical consequences are immediate. In my view, five actions should be started:
- map where AI systems intervene in decision-making on the employment relationship, including performance evaluations;
- ensure that a person takes the final decision with effective and autonomous power, and document it, bearing in mind that the worker’s consent does not cure an automated decision;
- be able to provide, on request, intelligible reasons that account for the system’s role and the main parameters;
- update the risk assessment and worker training for systems that affect work organization, rhythms and the way work is performed;
- review candidate screening tools in light of Article 22 of the GDPR, which the national exclusion does not touch.
The same principle of documented human review applies to police activities under Legislative Decree 160/2026, is transposed to the employment relationship, and is reinforced by the sanction of nullity.
For those wishing to navigate the regulatory framework referred to in this contribution, the
of this site are available: the
, the
and the
.
The reference sources are available on the institutional websites:
Legislative Decree no. 179 of 7 October 2026
, the
draft sent to the Chamber of Deputies
, the
opinion of the joint Committees IX and X
, the
,
press release no. 185 of the Council of Ministers
(all in Italian),
,
,
,
and the
judgment of the Court of Justice in Case C-634/21
.
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