Pregnancy arising during the notice period does not affect the validity of the dismissal

The Court of Cassation, in order No. 9268 of 3 April 2019, has affirmed that the dismissal for justified objective reasons of a pregnant employee during the notice period is lawful but unenforceable, as occurs in the case of termination during sick leave or absence for injuries.

The facts

In overturning the first instance ruling, the territorially competent Court of Appeal rejected a worker’s application to overturn her dismissal for justified objective reasons pursuant to art. 54 of Legislative Decree 151/2001. In detail, the Court of Appeal held that the dismissal had been formally notified on the date the letter of dismissal was received, regardless of the fact that related effects would arise at the end of the notice period.

In fact, the trial court, having inferred the actual start date of the pregnancy from the medical records submitted and from the expert witness report acquired in the first instance proceeding, found that the pregnancy started after the date of dismissal.

The worker challenged the decision before the Court of Cassation, objecting, among other things, that the onset of pregnancy during the notice period triggered the applicability of the safeguards set out in Legislative Decree 151/2001. This is so because the employment relationship continues during the notice period, with the associated rights and obligations, unless the worker accepts to terminate the relationship immediately or earlier.

The Court of Cassation confirmed the decision of the Court of Appeal, rejecting the worker’s application.

The ruling of the Court

The Court of Cassation reviewing the case highlighted that, according to established case law, a dismissal is a unilateral act that becomes effective from the moment the employer’s intentions are manifested and made known to the worker. This is so notwithstanding the fact that effects of the dismissal – typically, the termination of the employment relationship – may be deferred to a later date.

Consequently, the assessment of the conditions legitimating the right of termination must be conducted “with reference to the moment the unilateral act was formally notified and not with reference, in the case of dismissal with notice, to the successive end date of the notice period”.

According to the Court of Cassation, this was the principle on which the lower courts had based their decision. In fact, the lower courts had excluded the invalidity of the dismissal pursuant to art. 54 of Legislative Decree 151/2019 on the grounds that the dismissal had been communicated and formally notified to the worker when she was not pregnant.

For the Court of Cassation, the Court of Appeal had also rightly made reference to art. 54, paragraph 5, of Legislative Decree 151/2001, which considers null and void a notice of dismissal given “from the start of the pregnancy to the end of the maternity leave and until the child is one year old” and not when the related effects arise.

Therefore, a pregnancy arising during the notice period does not affect the validity of the dismissal notified to the worker at an earlier date. The Supreme Court did highlight that a pregnancy is an event that may satisfy the requirements, pursuant to art. 2110 of the civil code, to suspend the notice period.

However, in the case at hand, the worker’s claim was founded solely on the invalidity of the dismissal and not also on unenforceability ensuing from the suspension of the notice period, with the case thus rejected.