A disciplinary suspension measure is unlawful if facts justify dismissal (Diritto 24 from Il Sole 24 Ore, 29 March 2019 – Alberto De Luca, Gabriele Scafat)

In its recent judgement no. 285 dated 1 February 2019, the Court of Milan ruled on the legitimacy of an employer’s conduct in requiring a candidate to submit a certificate of pending proceedings and whether the candidate must comply with the request. The case originates from the disciplinary proceedings initiated against a worker for not having disclosed, during the interview, the fact of having been sentenced in court, two years earlier, to 4 years and 4 months of imprisonment, for cyber crimes. The judgement reports in full the letter of disciplinary complaint sent to the worker, where the facts were described in detail, such as, in particular, the fact of having used the data unlawfully stolen from a woman, who also worked for the same employer, to stalk her. In particular, the worker was accused, on the one hand, of having acted in a way (stalking) that was detrimental to the health and safety at the workplace of a colleague, and, on the other hand, of having fraudulently concealed the event (and the existence of such a significant criminal conviction) at the time of recruitment. As a result of the proceedings, the worker was sentenced to a 10-day suspension from work without pay. The Court of Milan, called upon to rule on the appeal filed by the worker, cancelled the disciplinary measure. On the first point, the Judge, in the opinion of the writer, ruling questionably, noted that the suspension measure was not an adequate to sanction a breach against health and safety at the workplace, which instead should have been sanctioneded with an expulsive measure. This, the judge argued, since given the seriousness of the claimed fact, “the [conservative – ed.] nature of the disciplinary measure (…) appears contradictory and unethical with respect to the assumptions detailed in the disciplinary claim”, which would lead to the conclusion that the only legitimate sanction could have been the dismissal. As for the alleged breach of obligation to disclose any pending criminal charges, the Milan-based Judge also excluded the general information duty for the worker, at the time of recruitment, regarding the existence of criminal records against him, outside those cases in which, in the public administration or in relation to specific jobs, this was the subject matter of a specific request by the employer. In conclusion, it is interesting to note that the judgement under review confirmed once again – and specifically with reference at the time of personnel selection – the principle according to which only in certain circumstances it is lawful to ask the worker to show a “certificate of criminal charges”, or a “criminal records certificate”, reporting any criminal convictions (also under the provisions of Article 8 of the Workers’ Statute); while, it should be kept in mind that there is still full prohibition to ask for a “certificate of pending proceedings”, which would interfere with the presumption of innocence of each citizen until a final conviction is ruled (Court of Cassation judgement No. 19012 dated 17 July 2018).