The Supreme Court of Cassation, with order no. 14254 of 24 May 2019, stated that, in the context of a collective dismissal due to staff cuts, in order to avoid indirect discrimination, the percentage of women dismissed should not be greater than that of the entire female work force in relation to the jobs being considered.
A worker who considers her dismissal to be discriminatory, brought proceedings before the judicial authorities in order to obtain a declaration of unlawful dismissal for breach of the percentage of female labour workforce provided for in Article 5(2) of Law No 223/1991. This provision states that ‘the undertaking may not (…) dismiss more women than the percentage of female labour employed in respect of the jobs in question’.
The case involved six male and three female employees: two women (including the plaintiff) were dismissed compared to one male employee. Since the total percentage of female workers employed was 33.33% and the actual percentage dismissed was 66.66%, the regulations were consequently breached according to the plaintiff.
The Supreme Court of Cassation, confirming the decision in merits, rejected the appeal filed by the company, thus confirming the interpretation of Article 5, paragraph 2, of Law 223/1991.
The decision of the Supreme Court of Cassation
In the context of a collective procedure for the reduction of personnel, the above rule requires that the comparison to be made in relation to the personnel to be expelled from the production cycle must first be proportional to the planned job reduction. In essence, the comparison should cover the business area covered by the procedure, so as to ensure that the proportion of female employment in the total number of employees remains the same.
The Supreme Court of Cassation, in this sense, specifies that Article 5, paragraph 2, of Law 223/1991 does not provide for a comparison between the number of workers of the two sexes before and after employment, but requires verification of the percentage of women workers so as to proceed with the dismissal of a number of employees in which the female component must not exceed the percentage previously determined.
This means that, in the business context, employees to be dismissed must be chosen in such a way as to ensure that the proportion of female employment in the total number of employees remains constant.
Rebus sic stantibus is necessary, in order to avoid so-called indirect discrimination in collective redundancy procedures, for maintaining the existing balance in terms of the proportion between male and female workers.