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.
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).
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:
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.
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:
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 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.
In its recent Order no. 6782 of 14 March 2024, the Italian Court of Cassation affirmed the following principle of law: “in the case of a permanent employment relationship, the employer’s waiver of the notice period, in the face of the worker’s resignation, does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
An employee resigned and her employer agreed to exempt her from working during her notice period, without paying her the relevant compensation in lieu of notice.
The resigning worker applied to the court for payment of the compensation in lieu of notice.
The Court of Pisa upheld the worker’s application and, on appeal, the ruling was also confirmed by the Florence Court of Appeal.
Both lower courts based their reasoning on the assumption that the employer, despite having exempted the appellant from working during her notice period, was nevertheless obliged to pay the equivalent of the amount of the salary that would have been due to the applicant for the notice period.
The company appealed against the decision of the Court of Appeal to the Italian Court of Cassation.
The Italian Court of Cassation judges, reversing the first instance ruling, held that in the context of a permanent employment relationship, the employer’s waiver of the notice period in the face of the employee’s resignation “does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
The judges therefore emphasised that notice is mandatory and, therefore, if one of the parties exercises the right to withdraw with immediate effect, the relationship also terminates immediately, and the only obligation that arises is that of the withdrawing party to pay the compensation in lieu of notice.
According to the Italian Court of Cassation judges, however, the other party can waive the notice without paying anything to the other party, who cannot claim any right to the continuation of the employment relationship until the notice ends.
On this basis, the Italian Court of Cassation upheld the appeal brought by the company, ruling that the resigning worker was not entitled to compensation in lieu of notice.
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By Order no. 1476 of 15 January 2024, the Italian Court of Cassation has once again ruled on the seriousness of the facts alleged against an employee as the reason underlying the dismissal for just cause under Article 2119 of the Italian Civil Code.
At the end of the three instances of proceedings, the Italian Court of Cassation rejected the appeal brought by the employee, confirming the previous rulings.
The case originates from an employer’s dismissal of an employee hired as a cook for having unlawfully and repeatedly stolen foodstuffs owned by the employer. In the context of the disciplinary proceedings, the worker had requested the postponement of the meeting scheduled for the hearing for health reasons. Specifically, the worker had produced medical certificates attesting that he was suffering from reactive stress anxiety.
The employee challenged the dismissal before the Court of Santa Maria Capua Vetere which rejected the application brought by the worker under Italian Law no. 92/2012 (so-called ‘Fornero Law’).
The Court of Appeal of Naples, at second instance, noted: (i) that there had been no breach of the right of defence as the medical certificate produced did not evidence a legitimate impediment to the hearing going ahead and, therefore, the request for postponement was merely to delay matters; (ii) that the investigative material acquired in the proceedings had confirmed the accusation made in the disciplinary proceedings, i.e. the repeated and unauthorised misappropriation of cooked food, as well as the worker’s failure to comply with the obligations of trust, loyalty and fairness; (iii) that dismissal was a proportional sanction due to the unlawfulness of the actions and the conduct carried out (which was also a criminal offence).
On these bases, the Court of Appeal judges rejected the worker’s claims.
The worker appealed to the Italian Court of Cassation on the basis of breach of the provisions of Article 7 of Italian Law no. 300/1970 for disciplinary procedures (so-called ‘Workers’ Charter’) and also alleged errors in the assessment of the evidence concerning the seriousness of the conduct and the lack of proportionality of the sanction.
The Court, in this appeal, reiterated that in cases of disciplinary dismissal, the worker has the right, if he or she so requests, to be heard by the employer, which may be postponed where there are proven and valid reasons that could jeopardise the effective and correct exercise of the same.
In the present case, in the opinion of the Italian Court of Cassation, the conduct complained of (theft of food), although not so serious as to cause significant financial damage and prejudice, constituted a justified reason for dismissal because of its disregard for social values and “conflicted with the standards and values of the legal system existing in the social context […] although there may have been apparent tolerance on the part of the employer”.
The Italian Court of Cassation, following the assessments carried out on the seriousness of the conduct, then concluded that the modest financial value of the offence “should not refer to the minor nature of the financial damage suffered by the employer, since it is necessary to evaluate the employee’s conduct in terms of the indications it gives with respect to his future conduct, as well as its capacity to cast doubt on the integrity of future performance and to affect the essential element of trust, underlying the employment relationship” (Italian Court of Cassation no. 11806/1997; Italian Court of Cassation no. 19684/2014).
Who has the power to dismiss the employee in the case of an outsourcing contract? The issue, which at first glance may appear technical, has widespread application in Italy, where the use of outsourcing (or sub-contracting) is frequent. In particular, companies have to keep on top of both developments in the regulations as well as case law, to ensure that that they act lawfully, considering social policies have changed significantly over the years. “For an outsourcing contract to be considered genuine it will need to comply with the requirements on personnel organisation and management, the coordination of resources and the assumption of business risk by the contractor”, explains Vittorio De Luca, partner of the law firm De Luca & Partners. “Although the relevant legislation has remained substantially unchanged for 20 years, the case-law, due to the particular sensitivity of the matter, has developed in a way that has, generally, lead to more negative consequences for the principal”. Finally, there is also new case-law regarding the sham outsourcing contract, which emerges when the principal imposes external management, governing the ‘outsourced’ workforce of the contractor by interfering directly in how the activities are carried out. In this case, the courts may consider the dismissal of the employee to be ineffective if it is not carried out by the principal in its capacity as de facto employer.
Continue reading the full version published in La Repubblica.
With judgment no. 2859 of 31 January 2024, the Italian Supreme Court dealt with the issue of disciplinary dismissal and its consequences in the event of a violation of the procedures established by law. In the case in question, the company, in applying the dismissal measure against the employee, had not respected the procedure envisaged by Article 53 of Royal Decree no. 148/1931, failing to convene the worker prior to dismissal to allow him to submit justifications in his defence. The Court of Appeal of Palermo, hearing the matter, had attributed the defect to the scope of paragraph 6 of Art. 18, ordering only the payment of compensation. The Supreme Court, on the other hand, established that the violation of this rule entails the invalidity of the disciplinary measure, with such invalidity deriving from the violation of a rule imposed to protect an interest worthy of protection, such as that of the worker’s defence. Therefore, in the Court’s opinion, the worker is entitled to the real protection envisaged by Article 18, paragraphs 1 and 2 of Italian Law no. 300 of 1970, namely the right to reinstatement in the job and to payment of remuneration in arrears and payment of social security contributions since the date of dismissal.