DLP Insights

Worker who has just exceeded protected period cannot be dismissed

Categories: DLP Insights, Case Law | Tag: Licenziamento, Dismissal

29 Aug 2023

The Court of Appeal of Trento decided with judgment No. 8 of 6 July 2023 that an employer cannot dismiss a worker suffering from an illness that leads to a disability immediately after exceeding the protected period, but must make reasonable arrangements for the preservation of the job, in compliance with the principles of good faith and fairness. These principles also include informing the employee of the possibility of taking unpaid leave before exceeding the protected period.

The facts of the case

The ruling originates from a judgment of the Court of Rovereto (No. 54 of 2022) which held that a dismissal imposed on a worker suffering from type 2 diabetes, which led to the amputation of a finger, at the end of the maximum period of absence provided for by the National Collective Bargaining Agreement (contratto collettivo nazionale di lavoro, ‘CCNL’), was lawful. The Court held that the dismissal was lawful on the grounds that the worker’s disability had not been certified before the termination of the relationship and that there was no obligation on the employer to inform the employee before the protected period was exceeded.

The worker appealed to the Court of Appeal against the Court of Rovereto’s judgment.

The decision of the Court of Appeal

The Court of Appeal came to a different conclusion, basing its reasoning on a finding of indirect discrimination against the worker. The Court recalled at the outset the guidance from the European Court of Justice, according to which disability is ‘a limitation which results in particular from physical, mental or psychological impairments’ which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The definition is, in reality, very broad and independent of the formal recognition of an invalidity ‘understood as a reduction – ascertained by the bodies responsible for this – of working capacity’. In addition, according to the Court, it is necessary to make a distinction between illness and disability, which is characterised by the ‘permanence of the illness and its long duration.

In the specific case, the judgment referred to the fact that the company had been periodically informed by the worker of his state of illness and that it was in this context that it could have taken ‘appropriate protection initiatives’. The Court held that the fact that the applicable CCNL provided for unpaid leave only at the request of the person concerned does not exclude the employer’s duty to take an active role. The employer should in fact inform the employee of the approaching expiry of the protected period and of the possibility of requesting leave as a form of accommodation. This action would be in line with the principles of fairness and good faith of the employment relationship, even if formally the employee had not yet reached the status of legal disability.

The Court therefore declared the dismissal null and void as discriminatory, as the company did not prove that it had made adequate efforts to reasonably accommodate the employee. The company also did not prove that these measures would have caused serious organisational or financial problems, nor that they would have been disproportionately onerous. As a result, the employee was reinstated in the workplace, with compensation equal to the total remuneration between the date of dismissal and the effective date of reinstatement.

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