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Protected period (periodo di comporto) and indirect discrimination against the disabled: the Court of Ravenna refers the matter to the European Court of Justice (Modulo 24 Contenzioso Lavoro by Il Sole 24 Ore, 2 April 2024 – Vittoria De Luca, Alessandra Zilla)

Categories: DLP Insights, Publications, News, Publications | Tag: Dismissal, discrimination

04 Apr 2024

With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment on the Italian legislation on the calculation of absences from work caused by disabling diseases in the protected period (periodo di comporto).

The question posed to the European Court of Justice can be summarised as follows: can the 180-day protected period provided for by the Confcommercio National Collective Bargaining Agreement (Contratto Collettivo Nazionale di Lavoro, ‘CCNL’) (which applies without distinction to both disabled and non-disabled persons) be regarded as a reasonable accommodation that is sufficient for avoiding indirect discrimination against disabled workers?

The order is based on Directive 2000/78/EC, relating to equal treatment in employment and occupation of disabled workers, implemented in Italy by Italian Legislative Decree no. 216/2013.

On the basis of this Directive, a line of case-law has developed at the EU level and, subsequently, at national level, which has held that the indiscriminate application of the same period of protection to disabled workers and non-disabled workers amounts to indirect discrimination. This is because it results in unequal treatment to the disadvantage of the disabled person who, due to the vulnerability inherent in the disability,  is placed at a particular disadvantage compared to other workers, given the risk of greater possibility of accumulating days of absence and thus more easily reaching the limits of the protected period.

The protected period: a summary background

Applying Article 32 of the Italian Constitution, which elevates the right to health to a constitutionally guaranteed right, and Article 38 of the Italian Constitution, paragraph 2, Article 2110 of the Italian Civil Code provides that a worker who is absent due to illness has the right not only to keep his or her job, but also to payment, when provided for by law or by collective bargaining, of remuneration or compensation to the extent and for the time determined by special laws, customs or according to equity (so-called protected period).

Only once this period has elapsed, can the employer lawfully terminate the employment contract for exceeding the protected period under Article 2118 of the Italian Civil Code, i.e. by giving the worker notice or the related compensation in lieu.

In this way, Article 2110 of the Italian Civil Code strikes a balance between opposing constitutional rights, both of which are considered worthy of protection: the worker’s right to health and job retention and the employer’s right to freedom of private economic initiative.

In the words of the Joint Chambers of the Italian Court of Cassation, the protected period represents “a balance between the employee’s interest in having an adequate period of absences to recover following illness or accident and that of the employer not to have to bear indefinitely the repercussions that such absences cause to the company organisation” (Joint Chambers of the Italian Court of Cassation no. 12568/2018).

EU concepts of disability and indirect discrimination

The European Court of Justice has interpreted Directive 2000/78/EC, concerning “equal treatment in employment and occupation”, by introducing the European concept of disability.

As is clear from the EU case-law on the subject, disability is defined as “a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one” (to that effect, European Court of Justice, 11 April 2013, HK Danmark, C-335/2011 and C-337/2011, paragraph 47, and European Court of Justice, 18 January 2018, Ruiz Conejero, C-270/16. Along the same lines, in a broader sense on the concept of disability, see also the European Court of Justice, 18 December 2014, FOA (Fag og Arbejde), C-354/2013, paragraph 53, according to which obesity also falls within the concept of disability, within the meaning of Directive 2000/78, when it hinders the worker’s participation in professional life).

On this subject, it should also be pointed out that the concept of E disability is completely autonomous and, therefore, “unconnected” from the recognition, in national law by the competent bodies, of disability under Italian Law no. 68/99 or the benefits under Italian Law no. 104/92 (Italian Court of Cassation no. 23338/2018, Italian Court of Cassation no. 6798 of 2018. In this regard, see also more recently: Court of Ravenna, 27 July 2023, Court of Appeal of Rome, 27 November 2023, Court of Rovereto, 30 November 2023 and Court of Rome, 18 December 2023).

Having clarified the concept of disability and considering the issue of the protected period, it is then necessary to take into consideration the provisions of Article 2(2)(b) of Directive 2000/78/EC on indirect discrimination on grounds of disability.

Under EU law, such discrimination exists where an apparently neutral provision is liable to put a person with a disability at a particular disadvantage, unless:

  1. that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
  2. the employer, is obliged, under national legislation, to take appropriate measures to eliminate disadvantages entailed by such provision.

On this point, the European Court of Justice, with the recent judgment of 18 January 2024, in case C-631/22 (in wikilabor.it), referring to its earlier decisions (see judgment of 21 October 2021, Komisia za zashtita ot diskriminatsia, C-824/19, EU-C-2021-862, paragraph 59 and the case-law cited therein), reiterated that Directive 2000/78/EC must be interpreted in accordance with the provisions of the UN Convention, which, in Article 2 states that “discrimination on the basis of disability” means “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.

Both European and national jurisprudence have expressed their views on these concepts of disability and indirect discrimination in relation to exceeding the protected period and dismissal of persons with disabilities falling within the EU definition.

Specifically, the European Court of Justice has affirmed that national legislation that, without making any distinction between non-disabled and disabled workers, allows an employer to dismiss a disabled worker due to absences from work attributable to his or her condition, conflicts with the prohibition on discrimination based on disability.

According to the European Court of Justice, such a rule “is liable to place disabled workers at a disadvantage and, so, to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of Directive 2000/78”.

The Italian Court of Cassation is of the same opinion, and taking into account the wording of Article 3, paragraph 3-bis, of Italian Legislative Decree no. 216/2003, recently ruled that “in relation to dismissal, the application of the ordinary protected period to the disabled worker constitutes indirect discrimination, because the failure to take into account the risks of greater morbidity of disabled workers, precisely as a consequence of disability, transforms the apparently neutral criterion of calculating the short protected period into a discriminatory practice against the specific social group protected as being in a particularly disadvantaged position”.

It follows that the application of the ordinary protected period to a disabled person could constitute indirect discrimination and, as a result, a dismissal ordered for exceeding the protected period is to be considered null and void, with the worker’s right to reinstatement.

Reasonable accommodation

To reduce the risk of discrimination, the employer, under Article 3, paragraph 3-bis, of Italian Legislative Decree no. 216/2003, while respecting the freedom of economic and private initiative and therefore in compliance with those principles that allow the free organisation of the company, must – on the basis of diligence and good faith – identify “reasonable accommodation” measures that allow the removal or minimisation of situations that may aggravate the employee’s physical conditions.

In the opinion of the Court of Cassation, the need to identify such accommodation measures “(…) does not mean that a maximum limit in terms of days of sick leave for a disabled worker cannot or should not be fixed … However, that legitimate aim must be achieved by means that are appropriate and necessary, and therefore proportionate (…)”.

In this regard, several indications have been provided by lower courts’ case-law regarding potential reasonable accommodation measures that the employer can implement according to the actual needs of people with disabilities.

According to that case-law, these include:

  • the deduction of sick days attributable to disability from the calculation of the leave of absence, with the consequent extension of the protected period;
  • ongoing monitoring of the worker’s suitability for the job;
  • reduction of working hours;
  • the suspension of the employee without pay, under Article 10, Italian Law no. 68/99, for as long as the condition that is incompatible with work persists;
  • the redistribution of tasks among workers to assign to the worker tasks compatible with his or her conditions;
  • the creation of a new work position, without prejudice to the need for such assignment not to prejudice the worker’s dignity with tasks considerably lower than both his or her own level and previous professionalism, where there are compatible positions in the company that would only require changes of working hours or shifts;
  • informing the worker of the sick days already taken and the maximum limit of the protected period provided for by collective bargaining;
  • informing the employee, in any way, of the approaching expiry of the protected period;
  • the right to remote working.

Ultimately, therefore, the risk of not taking into account the excessive morbidity of the person with a disability remains the employer’s responsibility, who can only deal with the issue with the appropriate tools which will be different from those provided for other employees.

The Court of Ravenna’s order

The referring judge, after citing the European Court of Justice case on which the national case law in the lower courts and the Court of Cassation is based, raised doubts on the need to prescribe a specific duration of the protected period for disabled people, considering that the Italian legislation on illness already provides significant protection to the disabled person. The judge also expressed doubts about the applicability of mechanisms such as the employer’s deduction of periods of absence due to disability from the protected period.

Continue reading the full version on Modulo Contenzioso 24 of Il Sole 24 Ore.

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