The dismissal for economic reasons may be ‘directly or indirectly discriminatory’

In its decision of January 9, 2025, no. 460, the Italian Supreme Court ruled on the dismissal of a disabled executive for economic reasons, stating that the discriminatory nature of the dismissal is not excluded by the presence of another valid reason, such as the elimination of the position due to company restructuring. 

The case and the first-instance decision

An executive, dismissed due to company restructuring and the elimination of her position, challenged the dismissal, claiming that the termination was discriminatory on the grounds of health and disability.

In the first instance and appellate proceedings, the judges confirmed the existence of an organizational reason for the dismissal, rejecting the executive’s appeal.

In particular, with regard to the alleged discriminatory dismissal on the grounds of health and disability, the Court of Appeal had deemed the appellant’s complaints to be unfounded.

The Supreme Court’s decision

Against the judgment of the Court of Appeal, the executive filed an appeal with the Italian Supreme Court.

In upholding the employee’s appeal, the Italian Supreme Court ruled that the Court of Appeal had wrongly stated that the dismissal could not be discriminatory due to the strong element of the reorganization reason established in the judgment, thus contradicting the “established case law, which instead shows that a dismissal can be, directly or indirectly, discriminatory even when a legitimate reason, such as an economic reason, is present”.

With regard to the burden of proof, the Italian Supreme Court also found that the Court of Appeal had violated the standard of proof established by the legal system by shifting the entire burden of proof and pleadingto the employee, on the grounds that she had failed to provide the necessary elements to prove the discrimination.

On this point, the Italian Supreme Court clarified that “when the claimant provides factual elements, including statistical data, from which the existence of discriminatory acts, agreements, or behaviors can be presumed, the burden of proof lies with the defendant to demonstrate the non-existence of discrimination”.

For the above reasons, the Italian Supreme Court, upholding the employee’s appeal, overturned the contested judgment and referred the case back to the Court of Appeal of Rome, «which, in a different composition, will carry out a new examination, applying what has been established with regard to the discriminatory dismissal and its nullity».   

Other related insights:

• Protected period (periodo di comporto) and indirect discrimination against the disabled: the Court of Ravenna refers the matter to the European Court of Justice
• The objective nature of discriminatory dismissal and the subjective nature of retaliatory dismissal