Categories: Insights, Case Law

Tag: Dismissal, Licenziamento


29 Aug 2023

Worker who has just exceeded protected period cannot be dismissed

The Court of Appeal of Trento decided with judgment No. 8 of 6 July 2023 that an employer cannot dismiss a worker suffering from an illness that leads to a disability immediately after exceeding the protected period, but must make reasonable arrangements for the preservation of the job, in compliance with the principles of good faith and fairness. These principles also include informing the employee of the possibility of taking unpaid leave before exceeding the protected period.

The facts of the case

The ruling originates from a judgment of the Court of Rovereto (No. 54 of 2022) which held that a dismissal imposed on a worker suffering from type 2 diabetes, which led to the amputation of a finger, at the end of the maximum period of absence provided for by the National Collective Bargaining Agreement (contratto collettivo nazionale di lavoro, ‘CCNL’), was lawful. The Court held that the dismissal was lawful on the grounds that the worker’s disability had not been certified before the termination of the relationship and that there was no obligation on the employer to inform the employee before the protected period was exceeded.

The worker appealed to the Court of Appeal against the Court of Rovereto’s judgment.

The decision of the Court of Appeal

The Court of Appeal came to a different conclusion, basing its reasoning on a finding of indirect discrimination against the worker. The Court recalled at the outset the guidance from the European Court of Justice, according to which disability is ‘a limitation which results in particular from physical, mental or psychological impairments’ which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The definition is, in reality, very broad and independent of the formal recognition of an invalidity ‘understood as a reduction – ascertained by the bodies responsible for this – of working capacity’. In addition, according to the Court, it is necessary to make a distinction between illness and disability, which is characterised by the ‘permanence of the illness and its long duration.

In the specific case, the judgment referred to the fact that the company had been periodically informed by the worker of his state of illness and that it was in this context that it could have taken ‘appropriate protection initiatives’. The Court held that the fact that the applicable CCNL provided for unpaid leave only at the request of the person concerned does not exclude the employer’s duty to take an active role. The employer should in fact inform the employee of the approaching expiry of the protected period and of the possibility of requesting leave as a form of accommodation. This action would be in line with the principles of fairness and good faith of the employment relationship, even if formally the employee had not yet reached the status of legal disability.

The Court therefore declared the dismissal null and void as discriminatory, as the company did not prove that it had made adequate efforts to reasonably accommodate the employee. The company also did not prove that these measures would have caused serious organisational or financial problems, nor that they would have been disproportionately onerous. As a result, the employee was reinstated in the workplace, with compensation equal to the total remuneration between the date of dismissal and the effective date of reinstatement.

Other Related Insights:

Subscribe to our newsletter

Contact

Need information? Write to us and our team of experts will respond as soon as possible.

Fill in the form

More news and insights

6 Feb 2026

Pay equity and transparency: draft implementing decree presented

Italy is among the first Member States to have adopted the draft implementing legislative decree of EU Directive 2023/970, which yesterday received its initial approval from the Council…

30 Jan 2026

A conviction for stalking can justify dismissal for just cause

With Ordinance No. 32952 of 17 December 2025, the Italian Supreme Court, Labour Section, ruled that a final conviction for stalking and abuse can justify dismissal for just…

30 Jan 2026

We continue to be a Great Place to Work!

For the third consecutive year, De Luca & Partners has been awarded the prestigious Great Place to Work® certification, a significant recognition of the value we place on…

29 Jan 2026

Italian Supreme Court: Employer Monitoring and the Use of Corporate Chats for Disciplinary Purposes

Corporate chats “intended for work-related communications by employees accessing them through company accounts constitute work tools, pursuant to Article 4, paragraph 2, of Law No. 300 of 1970,…

28 Jan 2026

Anti-union conduct: the Supreme Court moves beyond formalism and focuses on substance

With order no. 789 of 14 January 2026, the Italian Supreme Court addressed the issue of anti-union conduct by employers in relation to information and consultation obligations on…

27 Jan 2026

DID YOU KNOW THAT… the use of artificial intelligence may justify a dismissal for objective justified reason?

With Judgment No. 9135 of November 19, 2025, the Labour Section of the Court of Rome held that the dismissal for objective justified reason (i.e. “giustificato motivo oggettivo”,…