By judgment No. 450 of 13 June 2023, the Court of Appeal of Messina established that if an employer has not trained employees on the specific risks related to the tasks for which they are employed, sick days attributable to harmful working conditions do not count towards the protected period. This applies even if the employer has taken the necessary measures to protect workers’ health under the general obligation to protect their psycho-physical wellbeing under Article 2087 of the Italian Civil Code.
The facts of the case
The facts of the case stem from a claim brought by a physiotherapist who was dismissed for exceeding the maximum sickness period. The worker challenged the dismissal, arguing that 57 days had to be deducted from the protected period because the absence was attributable to carpal tunnel syndrome which developed through lifting immobile patients (tasks to which she was assigned).
The worker’s application was upheld at the preliminary stage and subsequently rejected by the Court of Barcellona Pozzo di Gotto on the ground that, although the absences were attributable to an illness attributable to her tasks, the employer had fulfilled the obligation to safeguard health under Article 2087 of the Italian Civil Code.
The worker therefore appealed against the decision of the Court of First Instance before the Court of Appeal, which overturned the judgment.
The Court’s decision
The Court of Appeal stated that the employer’s failure to comply with the training obligation prevented the days of absence from being counted towards the protected period.
In the Court’s view, it was not sufficient that the employer had complied with the obligation to provide information on the general and specific risks linked to the workers’ individual activities, since training has a further purpose, namely compliance with obligations to provide information.
In this context, the Court attached importance to the various “training” and “information” obligations by clarifying their differences. Training is the educational process necessary to acquire the skills for the safe performance of tasks, identifying, reducing and managing risks. Information, on the other hand, provides the knowledge necessary for the management, reduction and management of risks. According to the Court, ‘the former constitutes the indispensable framework for the latter to be meaningful’.
The training must, moreover, meet specific standards of adequacy, which require that the employer ensures that workers receive training tailored to the specific risks of each worker’s tasks. In this context, compliance with the obligation to provide information does not therefore replace the obligation to provide training.
Indeed, according to the Court, in the case in question it was highly probable that the worker, if she had been adequately trained, would not have had to undergo the operation, or would at least have had a shorter or less arduous course of treatment. This in turn would have reduced the number of sick days which would have fallen within the overall limit of 180 days over the three-year period.
This resulted in the breach of Article 2087 of the Italian Civil Code, which had a causal effect to the onset of the illness in the terms and times ascertained.
In this context, an employer’s failure to comply with the obligation to provide adequate training on health risks prevents days of absence from being taken into account when counting the maximum period of sickness.
Consequently, in the Court’s opinion, in the present case, the dismissal by the employer taking into account those absences was unlawful, with the consequent reinstatement of the worker in the workplace and compensation for damages, under Article 18 of Italian Law No. 300/1970.
Other related insights:
- Italian Court of Cassation: if there is no employer liability, absences due to accidents are counted in the protected period (periodo di comporto) – De Luca & Partners (delucapartners.it)
- Dismissal for exceeding the protected period declared null and void: reinstatement for companies under 15 employees (Norme & Tributi Plus Diritto of Il Sole 24 Ore, 7 October 2022 – Alberto De Luca, Claudia Cerbone) – De Luca & Partners (delucapartners.it)
