Categories: Insights, Practice · News

Tag: Contenzioso del lavoro, Dismissal


26 Sep 2023

Right to use holidays to avoid exceeding job retention period (comporto): limits and conditions

With Order No. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny the holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.

The facts of the case

The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.

With the same letter, the worker also informed the employer of her intention to request, once the holiday period ended, a period of unpaid leave if she were still unable to work. The employer rejected the request to use the holidays, granting the worker a period of unpaid leave of 120 days, and also informed her that the accrued and unused holidays would be paid on dismissal if, after the period of unpaid leave, the worker was still unable to resume work.

On expiry of the period of unpaid leave authorised by the Company, given the continuation of the employee’s illness, the employer notified the worker of dismissal for exceeding the job retention period.

The employee took legal action challenging the dismissal. In the proceedings, the Court accepted the worker’s requests, ordering the company to reinstate her.

On this point the Court of Appeal confirmed the judgment given in the first instance proceedings and found  that the Company had unlawfully rejected the request made by the employee before exceeding the job retention period seeking to use accrued holidays to avoid exceeding the period.

The appeal to the Italian Court of Cassation and the latter’s judgment

The Company appealed against the judgment to the Court of Cassation.

The Italian Court of Cassation – in confirming the second instance judgment – clarified that a worker who is absent due to illness has the right to request the use of accrued and unused holidays, with the aim of suspending the running of the job retention period.

According to the Court of Cassation judges, this right does not give rise to a corresponding obligation on the employer to accept the request where there are organisational reasons that would prevent it.

The Court also reiterated the need for the reasons advanced by the employer to be actual and genuine, with a view to balancing the opposing interests and to comply with the general clauses of fairness and good faith.

As the latter requirement had not been satisfied in the present case, the Italian Supreme Court therefore rejected the appeal brought by the Company.

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

3 Aug 2026

Pay Transparency: the first requests from employees are starting to arrive (Il Sole 24 Ore, 3 august 2026 – Vittorio De Luca)

Two months after the decree. Since Legislative Decree 96/2026 came into force on 7 June, according to a flash survey conducted by GIDP, 8% of HR directors have…

30 Jul 2026

Corporate controls and data protection: what balance?

A recent judgment of the Court of Pisa, No. 800 of 13 June 2026, addresses a topic of particular interest for companies: the delicate balance between the protection…

30 Jul 2026

Unfair dismissal and reinstatement: the employee must repay the payment in lieu of notice

With order no. 22187 of 28 June 2026, the Italian Supreme Court addressed the issue of whether payment in lieu of notice paid to an employee must be…

30 Jul 2026

Did you know that… an employee’s natural incapacity does not prevent the time limit for challenging a dismissal from running?

In judgment no. 23486 of 18 July 2026, the Joint Chambers of the Italian Supreme Court (i.e. “Corte di Cassazione”) held that the natural incapacity of an employee…

22 Jul 2026

An employee may not steer clients toward a competitor before resigning (Camera di Commercio Francese in Italia, 22 July 2026 – Vittorio De Luca, Silvia Zulato)

With Order No. 1723 of 26 May 2026, the Italian Supreme Court (Corte di Cassazione) confirmed the liability of an employee who, prior to the termination of his…

20 Jul 2026

Access to Naspi (Top24 Lavoro Ai – Il Sole 24 Ore, 20 July 2026 – Vittorio De Luca e Alessandra Zilla)

Regulatory Framework  The New Social Insurance for Employment (NASpI), introduced by Legislative Decree No. 22 of 4 March 2015, is the primary income support scheme for employees who…