Loss of chance: the Italian Supreme Court reiterates the strict burden of proof borne by the employee

With Order no. 1235 of 20 January 2026, the Italian Supreme Court reiterated the fundamental principles governing compensation for loss of chance in employment matters, with particular reference to the burden of proof borne by the employee. The ruling emphasises the need for a concrete allegation and proof of the actual possibility of achieving the expected benefit, as it is not sufficient to merely demonstrate the employer’s breach. 

Facts of the case

The dispute originated from claims brought by several employees against their employer. The claimants alleged that the company had failed to set individual targets for the years 2013 and 2014, in breach of a trade union agreement executed in 2003. On the basis of that breach, the employees sought compensation for loss of chance. 

While the employees’ claims were upheld at first instance, the Court of Appeal of Rome overturned the decision and dismissed the claims. The appellate court based its reasoning on an evidentiary shortcoming in the employees’ case. They had limited themselves to alleging the employer’s breach, without alleging or proving what their actual chances of achieving the targets would have been had those targets been assigned. According to the Court of Appeal, it was incumbent upon the employees to provide concrete elements “in light of the working methods adopted, the nature of the duties performed, and their own professional characteristics and skills” in order to demonstrate the existence of a real, and not merely hypothetical, chance.

The decision of the Italian Supreme Cour

The Italian Supreme Court declared the appeal inadmissible, confirming the correctness of the appellate judgment.

The Supreme Court first identified several procedural grounds of inadmissibility in the four grounds of appeal, which essentially sought a re-examination of the merits of the dispute, which is not permitted in proceedings before the Supreme Court. Among other things, the Supreme Court reiterated that alleged violations of the rules on the burden of proof (Article 2697 of the Italian Civil Code) or on the assessment of evidence (Article 115 of the Italian Code of Civil Procedure) cannot be invoked to challenge the lower court’s assessment of facts, but only to complain of an incorrect application of abstract legal rules.

Beyond the procedural aspects, the Court also held that the employees’ arguments were in any event incapable of undermining the central and correct reasoning of the Court of Appeal. The fundamental principle, fully endorsed by the Supreme Court, is that in order to obtain compensation for loss of chance it is not sufficient to prove the employer’s breach; it is also necessary to demonstrate the causal link between that breach and the consequential damage, represented by the loss of a concrete possibility of success.

This principle is fully consistent with settled case law. Loss of chance is regarded as an actual and compensable damage, classified as consequential loss, consisting in the loss of a concrete opportunity to obtain a beneficial result. For it to be compensable, a mere abstract possibility is not sufficient; rather, there must be a degree of likelihood or high probability. Case law has required proof of a probability of success that falls towards the higher end of the probabilistic scale, sometimes described as a high probability close to certainty.

The burden of providing such proof rests entirely on the employee. The employee must allege and demonstrate, including through presumptions based on specific and concrete circumstances, the existence of objective elements from which a real and not hypothetical possibility of achieving the benefit can be inferred.

In the present case, as correctly observed by the lower courts, the employees should have specified which expectations had been frustrated, describing the duties performed, the results previously achieved and their professional skills, in order to render their alleged chance of success plausible.

The order therefore represents an important confirmation of the strict evidentiary standard required for loss of chance claims, preventing such claims from becoming an automatic remedy in the event of any employer breach.