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:
“With the imminent conversion into law of the Italian Milleproroghe Decree, the extension of the deadline for entering into a fixed-term contract beyond 12 months, by agreement between the parties, is on its way. The extension granted by the decree will be from 30 April to 31 December 2024 and it will temporarily extend the period in which companies can extend fixed-term contracts up to a total of 24 months, if there are explicit technical, organisational or production needs”, Vittorio De Luca, lawyer and managing partner at De Luca & Partners, explains to Adnkronos/Labitalia.
“The purpose of the provision – explains Mr De Luca who is an expert in this field – is to give the stakeholders more time to adapt the collective bargaining agreements very few of which, for the time being, have introduced provisions on the reasons justifying fixed-term contracts, leaving many production sectors uncovered. In fact, as is well known, the latest amendment to the regulations governing fixed-term contracts was introduced by the Italian Employment Decree (Decree-Law no. 28/2023), which, by reformulating Article 19 of Italian Legislative Decree no. 81/2015, established an innovative regime in the event of continuation of the fixed-term contract beyond the term of 12 months”, he explains.
“The current version of the provision states that, after the first 12 months – for which no reason is required – the fixed-term relationship can continue (up to 24 months) only for the replacement of workers and in the cases provided for by collective bargaining. In the absence of provisions in collective bargaining agreements, on a temporary basis until 30 April 2024 (now extended to 31 December) technical, organisational or production reasons identified by the parties will also be sufficient”, concludes Mr. De Luca.
Press release:
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.
On 28 December 2023, Italy joined the European Framework Agreement called “Framework Agreement on the application of Article 16 (1) of Regulation (EC) No. 883/2004 in cases of habitual cross-border Telework”.
Article 1 of the Framework Agreement defines “cross-border telework” as an activity that a worker carries out remotely in one or more Member States through the use of information technologies.
The agreement provides that cross-border teleworkers may be subject to the social security system of the Member State of the employer’s registered office, provided that the work carried out under the “teleworking” regime in the State of residence is less than 50% of the total working time.
This regime applies only if the worker’s State of residence and the one in which the employer has its registered office are both signatories to the Framework Agreement. Therefore, if those States have not signed such a Framework Agreement, the provisions of Article 13 et seq. of Regulation (EC) No. 883/2004, which provide for the application of the social security system of the Member State of residence if the worker carries out a substantial part of his or her activity in that State, apply.
Where the conditions set out in the Framework Agreement are met, to derogate from the general provisions established at European level regarding the identification of the applicable legislation, it will be necessary to initiate a special request procedure under Article 18 of Regulation (EC) No. 987/2009. This procedure must be undertaken before the competent authority of the Member State in which the employed worker asks to apply the legislation which, in the case of Italy, is the Italian National Social Security Entity (Istituto nazionale della previdenza sociale ‘INPS’).
Finally, it should be noted that requests submitted up to 30 June 2024 may retroactively cover a period of up to twelve months prior to that of the request.
There is no end to new initiatives on the subject of whistleblowing. While the provisions of Italian Legislative Decree no. 24 of 10 March 2023 are already in force for companies with 250 employees or more, for companies employing 50 to 249 employees this has only been the case since 17 December 2023, requiring them to equip themselves with whistleblowing systems. How does all this impact the work of specialised law firms?
We asked some of the firms that are supporting companies in complying with the law on the protection of persons who report breaches of national or EU regulatory provisions. Six months after its entry into force, De Luca & Partners’ dedicated task force has analysed companies’ actual application of the rule, and it emerges that they are still far from compliant with the provisions. “We notice a general tendency to underestimate the complexity of the activities to be carried out to comply with the provisions of the Whistleblowing Decree”, says Vittorio De Luca, managing partner of De Luca & Partners.
“Companies are lagging behind in carefully assessing which system, including IT systems, should be used to make reports, in full compliance with applicable privacy legislation. Not only that, but companies also need to ensure that the disciplinary code adopted is adequate to avoid frustrating disciplinary measures. And this is in a regulatory framework that establishes two particularly significant risks: a fine of up to EUR 50,000, and above all, failure to comply with the exemptions provided for by Italian Legislative Decree no. 231/01”.
The full version of the interview was published on ItaliaOggi7 of 19 February 2024.
