With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment of 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 Community 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.
According to this line of case-law, the dismissal of a disabled person who, because of that disability, exceeds the protected period, must be declared null and void, as it is discriminatory.
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.
Among the reasons preventing the introduction of differentiated protection, the Court of Ravenna noted that it would be impossible for the employer to distinguish absences caused by common illness from those due to disabling diseases, given that privacy regulations do not oblige the disabled person to disclose his or her state of health.
For the reasons summarised above, the referring court therefore asked the European Court of Justice to rule on the following questions:
(1) Does Directive 2000/78/EC preclude national legislation which does not provide for different rules between workers who can be classified as disabled and workers who cannot?
(2) If the national legislation were to be regarded in the abstract as constituting indirect discrimination, is the legislation itself nevertheless objectively justified by a legitimate aim and are the means of achieving that aim appropriate and necessary?
(3) Can the provision of unpaid leave, at the worker’s request, amount to suitable and sufficient reasonable accommodation for avoiding discrimination?
(4) Can an accommodation consisting of the employer’s duty to grant a further period fully paid by it, without obtaining consideration for work, be regarded as reasonable?
(5) For the purposes of assessing the discriminatory conduct of the employer, can (for the purposes of establishing the lawfulness or otherwise of the dismissal) the fact that even a possible further period of stability in the relationship paid for by the employer would not have enabled the disabled person to return to work, given his or her continuing illness, be taken into account?
Other related insights:
Employment relationship – Dismissal for just cause – Unlawfulness – Existence
The existence of wilful and negligent misconduct to the detriment of the employer company requires that the damage be a foreseeable consequence of the employee’s conduct. In light of this principle, the dismissal of an employee who, having been authorised to leave the workplace during working hours, stopped on the way to the market for a few minutes in the company car, was held to be unlawful. At that time, he was photographed and the photo was published on the social media site Facebook, gathering the indignation of several subscribers. Italian Court of Cassation, Employment Division, 6 December 2023, no. 34107. The Court of Cassation, Employment Division, with judgment no. 34107 of 6 December 2023 ruled that the dismissal of an employee who, having been authorised to go home in the company car to change his wet clothes, stops on the way to go shopping at the market is unlawful. In the context of the evaluations carried out by the local court and confirmed by the Court of Cassation, the filming and subsequent publication of the company car by an extraneous third party was irrelevant for the purposes of assessing the lawfulness of the dismissal. This triggered the indignation of social media subscribers. In fact, it had emerged in the course of the proceedings that the employee’s conduct, not constituting conduct committed wilfully or negligently to the detriment of the company, was to be classified as unauthorised absence from the workplace for the sole period of the stop at the market. The Court concluded that such a case, also in the light of the provisions of the collective bargaining agreement applicable in that instance, should have been sanctioned with a precautionary measure.
Read the full version in Modulo Contenzioso 24 de Il Sole 24 Ore.
In our legal system, the issue of contracting-out and agency work has always been the focus of attention by the legislator in the field of employment law. Not surprisingly, one of the first employment laws to accompany the Italian Civil Code was Italian Law no. 1369 of 1960, which enshrined the prohibition of intermediation and interposition in employment relationships.
The legislation, after having remained essentially unchanged for almost 40 years, has undergone a certain revitalisation since the so-called Treu Law of 1997, which introduced temporary work, and the Biagi Law of 2003, which better regulated when and how there may be a disjunction between the formal employer and the beneficiary of the work provided.
Until a few years ago, the consequences of the unlawfulness of a sub-contract for the principal company – outside the exploitation scenario that constitutes the offence of ‘caporalato’ (an illegal form of employment intermediation) – were always of a purely financial nature and consisted in the payment of administrative penalties for failure to pay contributions and failure to directly employ the personnel used in the sham contract.
For some time now, on the other hand, compliance with the above-mentioned requirements which permit the use of contracting out has become even more important because of two recent case-law developments.
The first was about dismissal. Under this approach, the Italian Court of Cassation held that the principal, as the substantive employer in the case of a sham contract, cannot rely on dismissals made by the contractor, the actual employer.
Read the full version on Il Sole 24 Ore.
By order no. 87 of 3 January 2024, the Italian Court of Cassation ruled on the applicability of reinstatement where the fact underlying the dismissal ordered for justified objective reasons did not exist.
At the end of the three instances of proceedings, the Italian Court of Cassation upheld the appeal brought by the dismissed employee, quashing the judgment of the Court of Appeal which had only granted the employee compensation amounting to 20 months’ salary.
The case originates from a worker’s dismissal by a cooperative company for a justified objective reason, based on the need for a company reorganisation and the consequent outsourcing of accounting activities (the department to which the worker was assigned).
The first instance Court had upheld the worker’s appeal, declaring the dismissal unlawful.
The Court of Appeal of Catanzaro, in agreement with the first instance Court, rejected the appeal lodged by the employer cooperative, on the ground that the latter had not proved the existence: (i) of the causal link between the reorganisation and the abolition of the job; (ii) the elimination of the department to which the worker had previously been assigned; (iii) the impossibility of the worker’s relocation.
On the basis of these assumptions, the Court of Appeal judges had ordered the employer to pay the worker compensation equal to 20 months’ salary.
The worker then appealed to the Italian Court of Cassation asking for reinstatement under Article 18, paragraph 7, Italian Law no. 300/1970 (so-called Workers’ Charter).
The Court of Cassation, in accepting the appeal filed by the worker, reiterated that the burden of proof regarding the existence of the conditions for dismissal for justified objective reasons is placed on the employer who can also resort to presumptions, with the exception that the burden is on the worker to prove the assignable posts (Italian Court of Cassation 20 October 2017, no. 24882).
With the ruling in question, the Court also addressed the issue of the “manifest” non-existence of the fact justifying, under Article 18, paragraph 7 of the Workers’ Charter, as amended by Italian Law no. 92/2012, the application of the mitigated obligation of reinstatement.
According to the Court, the assessment as to whether the fact is manifestly non-existent must be independent from the character of immediate evidence, “due to the fact that Article 18, paragraph 7, second sentence of Italian Law no. 300/1970, as amended by Article 1, paragraph 42, letter b) of Italian Law no. 92/2012, was declared constitutionally unlawful, for breach of Article 3 of the [Italian] Constitution, limited to the word ‘manifest’”.
The Italian Court of Cassation agreed with the ruling of the Court of Appeal of Catanzaro on the non-existence of the “organisational reorganisation used as the basis of the dismissal” as well as on the absence of proof of the impossibility of fulfilling the repêchage obligation (obligation to relocate). However, the Italian Court of Cassation concluded that, in the present case, the justified objective reason cited at the basis of the dismissal did not exist. The Court of Cassation criticised the compensation order stating that the Court of Appeal had disregarded over-riding legal principles in the light of the latest rulings on the requirement of “manifest” non-existence.
In summary, according to the Italian Court of Cassation, if there is no causal link between the employer’s dismissal and the justified objective reason adduced as its basis, there is a manifest non-existence of the fact that, as such, justifies ordering the employer to reinstate the employee.
With Order no. 31660 of 14 November 2023, the Italian Court of Cassation ruled on a dismissal for a justified objective reason based on the need to cut costs. In this case, the employer had not demonstrated that the costs savings should be those specifically relating to the dismissed worker’s position rather than other positions that were more “expensive” than the one affected by the dismissal. The Italian Court of Cassation, hearing the case, established that for the purposes of ascertaining the lawfulness of a dismissal because of a general need to cut costs, the reasons why the employer chose a particular worker must be assessed. In this regard it is also necessary to consider other job positions, especially if they are comparable to the one abolished, to verify the existence of the causal link between the alleged organisational reason and the abolition of the job. Following the majority approach, the Court therefore ruled that if the dismissal for a justified objective is imposed to cut costs, the burden is on the employer to indicate the reasons why the particular worker has been chosen. .
