Court of Cassation: the burden of proof in regard to the suitability of employees lies with the employer

With its judgment No. 4502 of 8 March 2016, the Court of Cassation declared it illegal to dismiss an employee on the grounds of that employee’s refusal to perform new duties in a different company unit, when the employee in question complains that he/she is physically unsuitable for such duties without, however, providing written evidence of such unsuitability. On this point, the Court of Cassation declared that in such cases, the employee is in no way obliged to provide written medical evidence of his/her personal unsuitability for the new job, while it is the employer’s responsibility – in compliance with the employer’s own safety obligations (Article 2087 of the Italian Civil Code) and with the principles of correctness and good faith (Article 1375 of the Italian Civil Code) – to verify the employee’s state of health, and subsequently, in the case of proven unsuitability for the new duties, to adopt possible alternative measures to the termination of employment.