Court of Cassation: transfer and discrimination

With sentence no. 15435 dated 26 July 2016, the Court of Cassation affirmed the principle according to which the evidence of discrimination provided by an employee may be circumstantial or based on presumption. In the case in point, a female employee was dismissed for not accepting transfer to a Point of Sale about 150 km from headquarters. According to the employee the transfer was discriminatory because it was notified 3 days after expiry of the trial period pursuant to section 56 of Legislative Decree 151/2001 and there were no genuine technical, organizational and production reasons, pursuant to section 2103 of the Civil Code, for the transfer. The Court of Cassation ruled that the transfer and hence the dismissal was unlawful, stating that the onus of proof on the employee does not necessarily consist in the production of data of a statistical nature. Indeed, upholding the decision of the lower courts, the Court of Cassation said that in the specific case facts had emerged which «supported in precise and consistent terms the presumption of acts, agreements or behavior of a discriminatory nature», and the onus was therefore on the employer to demonstrate that this was not the case, which he failed to do.