The objective nature of discriminatory dismissal and the subjective nature of retaliatory dismissal

The Court of Cassation, with judgement No. 14456 dated 9 June 2017, has intervened again on the distinction between discriminatory dismissal and retaliatory dismissal. The Court, intervening on the matter detailed in judgement No. 6575 dated 5 April 2016 issued by the Court itself, clarified that discriminatory dismissal is objective since it is based on the breaching of pre-established laws both at the national and European level in force to protect specific interests such as political orientation, religious rights, belonging to a union or participation to union work, race, language, gender, disability, age or sexual orientation or personal beliefs of the employee (see art. 3, Law No. 108/1990; art. 4, Law No. 604/1966; art. 15, Law No. 300/1970). On the contrary, retaliatory dismissal does not have an objective nature, and it does not operate in an automatic fashion. In such case, not only the employer’s reasons must be unjustified but it is also necessary that the reason deemed unlawful is exclusive and decisive such as an employer’s reaction to an employee’s lawful behaviour, that however is unwelcome. Essentially, a retaliatory dismissal and a discriminatory dismissal are two well distinct cases, being the qualifying element in the case of (i) discriminatory dismissal represented by the discriminatory conduct and (ii) that of the retaliatory dismissal represented by the unlawfulness of the reason (exclusive and decisive).