Categories: Insights, Publications · News, Publications

Tag: Corte di Cassazione, Datore di lavoro


26 Feb 2026

Loss of chance: the Italian Supreme Court reiterates the strict burden of proof borne by the employee

With Order no. 1235 of 20 January 2026, the Italian Supreme Court reiterated the fundamental principles governing compensation for loss of chance in employment matters, with particular reference to the burden of proof borne by the employee. The ruling emphasises the need for a concrete allegation and proof of the actual possibility of achieving the expected benefit, as it is not sufficient to merely demonstrate the employer’s breach. 

Facts of the case

The dispute originated from claims brought by several employees against their employer. The claimants alleged that the company had failed to set individual targets for the years 2013 and 2014, in breach of a trade union agreement executed in 2003. On the basis of that breach, the employees sought compensation for loss of chance. 

While the employees’ claims were upheld at first instance, the Court of Appeal of Rome overturned the decision and dismissed the claims. The appellate court based its reasoning on an evidentiary shortcoming in the employees’ case. They had limited themselves to alleging the employer’s breach, without alleging or proving what their actual chances of achieving the targets would have been had those targets been assigned. According to the Court of Appeal, it was incumbent upon the employees to provide concrete elements “in light of the working methods adopted, the nature of the duties performed, and their own professional characteristics and skills” in order to demonstrate the existence of a real, and not merely hypothetical, chance.

The decision of the Italian Supreme Cour

The Italian Supreme Court declared the appeal inadmissible, confirming the correctness of the appellate judgment.

The Supreme Court first identified several procedural grounds of inadmissibility in the four grounds of appeal, which essentially sought a re-examination of the merits of the dispute, which is not permitted in proceedings before the Supreme Court. Among other things, the Supreme Court reiterated that alleged violations of the rules on the burden of proof (Article 2697 of the Italian Civil Code) or on the assessment of evidence (Article 115 of the Italian Code of Civil Procedure) cannot be invoked to challenge the lower court’s assessment of facts, but only to complain of an incorrect application of abstract legal rules.

Beyond the procedural aspects, the Court also held that the employees’ arguments were in any event incapable of undermining the central and correct reasoning of the Court of Appeal. The fundamental principle, fully endorsed by the Supreme Court, is that in order to obtain compensation for loss of chance it is not sufficient to prove the employer’s breach; it is also necessary to demonstrate the causal link between that breach and the consequential damage, represented by the loss of a concrete possibility of success.

This principle is fully consistent with settled case law. Loss of chance is regarded as an actual and compensable damage, classified as consequential loss, consisting in the loss of a concrete opportunity to obtain a beneficial result. For it to be compensable, a mere abstract possibility is not sufficient; rather, there must be a degree of likelihood or high probability. Case law has required proof of a probability of success that falls towards the higher end of the probabilistic scale, sometimes described as a high probability close to certainty.

The burden of providing such proof rests entirely on the employee. The employee must allege and demonstrate, including through presumptions based on specific and concrete circumstances, the existence of objective elements from which a real and not hypothetical possibility of achieving the benefit can be inferred.

In the present case, as correctly observed by the lower courts, the employees should have specified which expectations had been frustrated, describing the duties performed, the results previously achieved and their professional skills, in order to render their alleged chance of success plausible.

The order therefore represents an important confirmation of the strict evidentiary standard required for loss of chance claims, preventing such claims from becoming an automatic remedy in the event of any employer breach.

Subscribe to our newsletter

Contact

Need information? Write to us and our team of experts will respond as soon as possible.

Fill in the form

More news and insights

17 Mar 2026

Equal pay: green light for the decree on pay equality and wage transparency (People are People, 16 marzo 2026 – Claudia Cerbone, Martina De Angeli)

Claudia Cerbone and Martina De Angeli, professionals at the De Luca & Partners firm, author this article dedicated to the draft legislative decree approved last February 5 by…

16 Mar 2026

Illegitimacy of staff leasing due to violation of the principle of temporariness (Top 24 Lavoro, 27 febbraio 2026 – Vittorio De Luca, Alessandra Zilla)

With judgment no. 4493 of December 19, 2025, the Court of Milan addressed the issue of indefinite-term labor supply (so-called staff leasing). In particular, the Court clarified that,…

10 Mar 2026

The transfer of the employee is lawful when there is incompatibility with the company environment (Camera di Commercio Italo-Francese, 10 marzo 2026 – Vittorio De Luca, Silvia Zulato)

With Order No. 4198 of 25 February 2026, the Italian Supreme Court (Court of Cassation) – Labour Section – reaffirmed that a situation of environmental incompatibility may justify…

3 Mar 2026

Employee monitoring: when “bossware” becomes a legal risk (Agenda Digitale, 2 marzo 2026 – Martina De Angeli)

Monitoring workers through digital tools is a rapidly expanding practice, accelerated by the spread of remote work and the digital transformation of companies. Before adopting these systems, however,…

3 Mar 2026

Melismelis signs the campaign for the 50th anniversary of De Luca & Partners

For the historic labor law firm, the agency developed the 50th-anniversary logo and advertising campaign, managed online and offline media planning, and renewed the website’s visual identity. Milan,…

27 Feb 2026

Dismissals: the Corte costituzionale grants broader discretion to judges and greater scope for reinstatement (I Focus del Sole 24 Ore, 26 febbraio 2026 – Vittorio De Luca e Alessandra Zilla)

The regulation of dismissals continues to represent one of the central pillars of Italian labour law, an area of constant tension between freedom of economic initiative and the…