The Court of Cassation, in its recent Order No 3361 of 3 February 2023, reiterated its consistent approach concerning the allocation of the burden of proof in anti-discrimination judgments, specifying that the allocation criteria do not follow the ordinary criteria of Article 2729 of the Italian Civil Code, but rather the special ones that establish a concession in favour of the applicant.
The burden of proof in discrimination matters
Under Article 25, paragraph 2-bis of Italian Legislative Decree No 198/2006 (Equal Opportunities Code) any treatment which, by reason of the state of pregnancy, maternity or paternity, including adoption, or by reason of the ownership and exercise of the corresponding rights, places the worker in at least one of the following conditions, constitutes discrimination:
With reference to the allocation of the burden of proof, Article 40 provides that where the applicant provides factual evidence, including statistical data on recruitment, remuneration schemes, assignment of tasks and qualifications, transfers, career advancement and dismissals, capable of establishing, in precise and consistent terms, a presumption of acts, agreements or conduct which are discriminatory on grounds of sex, the burden of proof as to the non-existence of the discrimination lies with the defendant.
The Court of Cassation interpreted this provision to mean that it ‘does not reverse the burden of proof, but only mitigates the ordinary evidentiary regime in favour of the applicant, providing that the employer, in line with the provisions of Article 19 of Directive No 2006/54/EC (as interpreted by the EU Court of Justice 21 July 2011, C-104/10), bears the burden of proving the non-existence of discrimination, but on condition that the applicant has previously provided the court with facts, also inferred from statistical data, capable of establishing, in precise and consistent terms, even if not serious, the presumption of the existence of acts, agreements or conduct which are discriminatory on grounds of sex’ (Court of Cassation No 25543/2018).
Consequently, the Court of Cassation stated, ‘the burden is on the worker to allege and demonstrate the risk factor and the treatment he assumes to be less favourable than that reserved for persons in similar conditions, while at the same time deducing a significant correlation between these aspects, while the employer must deduce and prove unequivocal circumstances, capable of excluding, for the sake of clarity, seriousness and consistency of meaning, the discriminatory nature of the termination’ (Court of Cassation No 23338/2018).
It follows, on a practical level, that in anti-discrimination proceedings, the employee who invokes the unlawfulness of the conduct is required to prove – also by means of presumptive evidence – that the treatment is less favourable than that received by colleagues in similar conditions. The employer, on the other hand, in order to exclude her, will have to demonstrate that the decision would have been made with the same parameters also in respect of any worker without the risk factor who would have been in the same position (on the same basis, among many see: Court of Cassation, judgment No 1/2020).
Moreover, the need to make corrections to the normal criteria of the burden of proof in cases of discrimination – which makes it undoubtedly difficult for the worker to offer valid evidence in support of his or her allegations – had already been noted by the Community rules, to the extent that they offer all the individual Member States the freedom to provide for a less burdensome system of allocation of the burden of proof, expressly providing that ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of that principle… [This Directive] shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs’. (Directive No 2006/54/CE).
The facts of the case and the outcome of the proceedings of first and second instance
The case originates from the appeal under Article 38 of Italian Legislative Decree No 198/2006, brought by a female apprentice to obtain a finding of and redress for the allegedly discriminatory conduct of the employer in relation to the withdrawal of the professional apprenticeship contract. The worker complained, in fact, that out of approximately two hundred apprentices hired on a permanent basis, the applicant’s non-recruitment was related to her two pregnancies during her apprenticeship.
The court of first instance upheld the worker’s appeal against the decree rejecting her application issued at the end of the interim stage. The court ordered the company to cease the discriminatory conduct and to remove its effects, reinstating the employee in the job previously occupied, with the reconstruction of her career in legal and financial terms, as if the dismissal had never occurred.
The Court of Appeal reversed the first instance ruling, stating that the evidence put forward by the worker in support of the discriminatory nature of the employer’s conduct lacked the precision and consistency required to establish a presumption of discrimination that could only be overcome in the presence of negative evidence offered by the employer.
The territorial court observed that ‘the dismissal is a neutral act in itself, lacking consistency, even more so in the specific case where the notice of dismissal was communicated approximately 17 months after the second maternity leave; similarly, the extension of the training contract for a period corresponding to that of the absences due to pregnancy, maternity and illness, constituted a neutral factor inspired by the principle, for the protection of both parties to the contract, of guaranteeing the effectiveness of the training’.
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With the recent order No 1584 of 19 January 2023, the Italian Court of Cassation addressed dismissal for ‘poor performance’, stating that conduct that had previously been the subject of separate disciplinary proceedings cannot be used as a basis for dismissal on the grounds of poor performance.
Poor performance consists in a breach by the employee of his or her main obligation, which is to perform work, and is therefore a lawful subjective ground for dismissal. Case law has, over the years, identified specific and determined limits within which dismissal for poor performance can be said to be lawful.
A railway company employee challenged their dismissal which was on the basis of ‘the worker’s poor or insufficient performance fulfilling the duties of their grade’.
The Court of Bologna, in accepting the worker’s appeal under Article 1, paragraph 51, Italian Law No 92/2012, against the order of the same Court, declared the dismissal unlawful, and applied the so-called ‘mitigated’ reinstatement protection under Article 18, paragraph 4, Italian Law No 300/1970.
Similarly, the Court of Appeal of Bologna also declared the dismissal unlawful, fully confirming the Court’s ruling and ordering the company to pay the worker the additional costs of the proceedings.
The first instances Judges come to the conclusion that the dismissal in question was based exclusively on previous disciplinary charges against the worker, which had already been subject to sanctions by measures other than dismissal. The Judges noted that the employer company had not evidenced, on an objective level, the employee’s below-average performance and, on a subjective level, the agent’s fault, caused by inexperience, incapacity and negligence.
Finally, they pointed out that breach of the ne bis in idem principle, with the earlier exercise of disciplinary powers, resulted in the non-existence of the alleged fact underlying the dismissal.
The Company, therefore, appealed the judgment of the Court of Appeal before the Italian Court of Cassation.
When examining the matter, the Court of Cassation confirmed the rulings of the lower judges regarding the unlawfulness of the dismissal.
First of all, the Cassation Court Judges reiterated a well-established principle of jurisprudence on the subject of poor performance where the case arises, on an objective level, due to performance below the required standard and, on a subjective level, due to the fault of the worker.
For this reason, continued the Court, poor performance cannot be proved by several previous disciplinary actions against the worker which have already been sanctioned in the past, because this would constitute an indirect substantial duplication of the effects of conduct that has already been exhausted.
According to the Judges of the Italian Court of Cassation, therefore, the employer is not allowed to exercise disciplinary power twice based on the same facts under a different assessment or legal interpretation, as – in the opinion of the Italian Court of Cassation –done by the railway company. The employer, in fact, based the dismissal exclusively on previous disciplinary charges used to evaluate the overall application of the exemption from duty provided for by Article 27, paragraph 1, letter d), of the implementing regulation, Italian Royal Decree No 148/1931 governing the employment relationships of road and tram drivers.
According to the Italian Court of Cassation, therefore, it is certainly possible to include in poor performance multiple incidents, provided that they do not consist of multiple prior disciplinary incidents of employees already sanctioned – without dismissal – in the past.
Finally, the Italian Court of Cassation also confirmed the decision of the Court of Appeal regarding the protection regime applied once the unlawfulness of the dismissal had been ascertained. In particular, the Judges clarified that if the action is no longer punishable, it is equivalent to a fact devoid of illegality and as such attributable to the provision of Italian Law No 300/1970, Article 18, paragraph 4, as amended by Italian Law No 92/2012 (i.e. the ‘mitigated’ reinstatement protection).
In conclusion, therefore, once the employer has exercised its sanctioning power in respect of disciplinary conduct, not only does the power lapse in the hands of its holder, so that the employer can no longer exercise it for the same conduct, but at the same time, the action constituting a disciplinary issue can no longer be sanctioned, losing its unlawful nature due to the exhaustion of the sanctioning power.
Other related insights:
With Order of 23 January 2023, No 1965, the Italian Court of Cassation stated that, for the purposes of applying the collective dismissal procedure referred to in Italian Law 223/1991, the size requirement of at least 15 employees must refer to the company as a whole and not to the single production unit.
In the case examined by the order in question, the worker had been fired for a justified objective reason. The Court of Catania had declared the dismissal unlawful since it was ordered without observing the procedure for collective dismissals referred to in Italian Law 223/1991.
The Court of Appeal of Catania confirmed the decision of the judge of first instance and, therefore, the reinstatement of the employee.
The judges of the Italian Court of Cassation, in confirming the lawfulness of the worker’s dismissal, pointed out that the size requirement in the collective dismissal procedure must be assessed with reference to the company as a whole and not to individual territorial business units.
According to the Italian Court of Cassation, from a literal interpretation of Article 24 of Italian Law 223/1991, under Article 12 of the Italian general provisions on the law, the legislator’s intention emerges from the fact that the term ‘undertaking’ is not to be confused with the concept of ‘production unit’ referred to in Article 18 of Italian Law 300/70.
This conclusion can also be reached on the basis of the rationale for the provisions on collective dismissal the purpose of which is both to protect the worker as an individual but also to eliminate or reduce the social impact of the measure imposed on all workers.
Therefore, given the diversity of the interests protected, Italian Law 223/1991 cannot in any way be superimposed on Article 18 of the Italian Workers’ Charter which, for the purposes of offering real protection, requires the assessment of the size requirement in the production unit of the dismissed employee.
In the light of the principles set out above, the Court rejected the company’s appeal, confirming the unlawfulness of the dismissal and, consequently, the employee’s right to reinstatement.
Other related insights:
The Court of Milan, in judgment No 2652 of 11 November 2022, returned to the issue of the appealability of conciliation statements, ruling that in the absence of a res litigiosa (dispute), the minutes cannot be classified as settlement agreements, with the consequent potential ability to challenge the waivers contained therein.
The facts of the case
On the termination of a works contract, the workers employed on the contract were told that, if they wished to continue working for the successor contractor, they would have to sign conciliation minutes at the trade union offices, declaring, under Article 2113, paragraph 4 of the Italian Civil Code, that they no longer had any rights arising under the previous employment relationship.
The workers signed these conciliation minutes, waiving, among other things, claims for a higher classification on the basis of the tasks actually performed and the payment of the corresponding salary differences.
The signatory workers challenged the signed minutes, bringing an action before the employment court to obtain their annulment and, consequently, the ascertainment of the higher contractual classification level and an order against the company to pay the salary differences.
The Court of Milan’s judgment
The Court of Milan, in upholding the challenge brought by the workers, ascertained that the challenged conciliation minutes could not be considered to be a settlement agreement, since the agreements entered into by the parties lacked the essential element of a settlement agreement, i.e., the res litigiosa.
Under Article 1965 of the Italian Civil Code, a settlement is defined as a contract by which the parties, by making mutual concessions, put an end to a dispute that has already begun or prevent a dispute that may arise between them.
A reading of this provision shows, therefore, that the typical basis of the settlement is to resolve or avoid a dispute, with mutual concessions by the disputing parties.
Consequently, the Milan Court, on the basis of these principles also confirmed by the case law of the Italian Court of Cassation (amongst many see: Italian Court of Cassation No 8917/2016), found that, since the so-called res litigiosa did not in any way emerge from the agreements signed by the applicants, such agreements ‘cannot be classified as settlement agreements, but simply as documents regulating the conclusion of the relationship, without any preclusion on the bringing of legal proceedings’.
Altri insights correlati:
Settlement report: challengeable if signed with a union other than the employee’s union
Minutes of the conciliation meeting: voided if the worker has been deceived
The Reform of the Civil Proceedings, (Italian Legislative Decree No 149 of 10 October 2022) will extend, with effect from 30 June 2023, the ‘assisted negotiation’ procedure to employment disputes.
From that date the employer and employee, if assisted by lawyers or employment consultants, will be able to sign final and non-appealable conciliation minutes (in jargon defined as ‘tombali’ – ‘tombstones’) without therefore having to ratify the agreement reached before the conciliation commissions or the bodies provided for by Articles 410 et seq. of the Italian Code of Civil Procedure.
With regard to the procedural aspects, as is already the case today for civil disputes falling within the scope of assisted negotiation, the procedure can be activated with the signing, between the parties involved in a dispute, of an agreement with which they undertake to cooperate to seek an amicable resolution of the dispute with the assistance of qualified professionals.
The agreement must provide, in addition to the subject of the dispute, a deadline for the completion of the procedure (not less than one month and not more than three months), extendable for a further 30 days by agreement between the parties to that effect.
In common with the ordinary civil procedure, the procedure may also be initiated at the request of only one of the parties, by written invitation addressed to the other party to sign the aforementioned agreement, with an indication of the subject of the dispute and the warning that failure to respond to the invitation within 30 days or the refusal to sign it may be considered by the judge for the purposes of the costs of the proceedings.
Any agreement reached as part of the assisted negotiation procedure, signed by the parties and their respective professionals, is definitive and will constitute (in the same way as even non-final judgments, as well as the minutes of conciliation currently signed in the venues envisaged by Articles 410 et seq. of the Italian Code of Civil Procedure and duly filed) an enforceable right including for the registration of judicial mortgage. The agreement must be provided, by one of the two parties, to a certification commission established under Article 76 of Italian Legislative Decree No 276 of 10 September 2003, within the following ten days.
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