With the recent ruling no. 181 published on 27 April 2022, issued as part of the Fornero Procedure opposition proceedings, the Court of Vicenza expressed its opinion on whether absences due to illness attributable to the employee’s disability can be included (or not) in the protected period.
The case originated from the dismissal of an invalid employee for having been absent due to illness for a period exceeding 365 days in the last three years, thus exceeding the protected period governed by the Agidae social-assistance collective labour agreement applicable to the employment relationship.
The employee, challenging the dismissal, objected to its discriminatory nature on grounds of disability, asking the Judge to declare it null and void.
In support of her argument, the employee invoked the Community legislation on direct and indirect discrimination (EU Directive 2000/78/EC) and rulings of the European Court of Justice on the subject, arguing that the employer was obliged to adopt “reasonable accommodations” to “guarantee persons with disabilities full equality with other employees.” This means the employer should have excluded from the protected period calculation the days of absence attributable to “endometriosis”, which was her declared disability, to avoid exceeding the protected period.
The Court, confirmed the order made during the summary proceedings and rejected the employee’s opposition based on several arguments.
While it is undeniable the European Court of Justice found indirect discrimination against the disabled in the way absences due to illness were calculated, since the disabled employee was subject to a greater risk of accumulating sick days, it is equally true that the conclusions reached by the European Court cannot be applied to every disabled person’s dismissal.
This is because it is up to the national court to establish whether the employer has ensured “reasonable accommodation” for equal treatment and verify the legitimacy of the purpose pursued by the national legislation.
During the proceedings, the Court found that the employer had adopted numerous “reasonable accommodations” in favour of the employee, including undergoing medical examinations which determined the employee’s fitness for the specific task.
The Court expressed the need to weigh the legally relevant interests of the parties, i.e., the disabled person’s interest in maintaining a job suited to her physical and mental condition and the employer’s interest in obtaining a useful service for the company, considering that Art. 23 of the Constitution prohibits welfare benefits, including those at the employer’s expense, unless provided for by law.
Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.
