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:
In its very recent judgment no. 2274 of 23 January 2024, the Italian Court of Cassation ruled that it is lawful for an employer to give notice of a second dismissal pending a judgment concerning a previous dismissal based on different grounds. However, the second dismissal has no effect if the first dismissal is declared lawful by a final judgment.
An employee, pending proceedings relating to a first dismissal, brought legal proceedings challenging a second disciplinary dismissal imposed on him by his employer.
The proceedings relating to this second dismissal were settled by the so-called ‘summary phase’ of the Fornero Proceedings with the annulment of the dismissal as only one of the alleged facts had been proven.
Both the employee and the employer appealed against the summary phase order.
The two sets of appeal proceedings were not joined and ended with two separate judgments, both declaring the invalidity of the supervening second dismissal. This was because, pending those judgments, the first instance court had held the first dismissal to be lawful and, subsequently, the Court of Appeal, again with reference to the first dismissal, had declared the worker’s appeal inadmissible.
The two judgments delivered in the context of the appeal phase relating to the second dismissal were appealed against by both the employer and the employee.
The Court of Appeal – following the intricate procedural sequence of events summarised above – declared the second dismissal invalid on the basis that there had been a judgment, albeit not final, which had affirmed the lawfulness of the first dismissal.
The employer appealed to the Italian Court of Cassation against the Court of Appeal’s decision.
Pending the appeal to the Italian Court of Cassation proceedings relating to the second dismissal, that court also ruled on the first dismissal, confirming its lawfulness.
In the judgment under discussion, the Italian Court of Cassation judges therefore noted, preliminarily, the loss of interest on the part of the employer in insisting on the annulment of the ruling declaring the invalidity of the second dismissal, because such ineffectiveness was now to be considered confirmed by the final judgment.
It was only to rule on the costs of the proceedings that the Italian Court of Cassation upheld the employer’s appeal on the following grounds.
In the first place, the Court ruled that, in an employment relationship, the employer, if it has already given the employee notice of dismissal, may lawfully give notice of dismissal for a second time, based on a different ground or reason, because the latter is completely autonomous and distinct from the first.
According to the Italian Court of Cassation judges, both acts of withdrawal are in themselves theoretically sufficient to achieve the purpose, since the second dismissal is effective only in the event that the previous dismissal is held to be invalid or ineffective by a final judgment.
It follows that the Court of Appeal should have ruled on the lawfulness or otherwise of the second dismissal, since the judgment relating to the first dismissal had not – at the time – yet been concluded with a final judgment.
The Italian Court of Cassation, accepting the appeal brought by the employer, consequently ordered the employee to pay the legal costs of the proceedings.
Other related insights:
In its recent order No. 19023 of 5 July 2023, the Italian Court of Cassation has ruled on geographical jurisdiction under Article 413 of the Italian Code of Civil Procedure. The Court ruled that the worker’s home, from which he performed his work through remote working, could not be classified as a company dependence in the absence of any objective or subjective connection of the place of performance of the service with the company.
The facts of the case
The case originates from a payment order issued by the Court of Rome in favour of a temporary worker. The employer had been ordered to pay the worker compensation arising from the nullity of the temporary employment contract and for the continuation of the activity beyond the expiry of the time-limit, with the consequent transformation of the temporary employment contract into a permanent employment contract.
The company challenged the payment order, asking for a preliminary determination that the Court of Rome did not have geographical jurisdiction over the matter and that, in the alternative, jurisdiction rested with the Court of Genoa, as the worker’s location of operational and effective activity, or the Court of Udine, as the place where the company had its registered office.
In this application the Court of Rome declared its lack of geographical jurisdiction, holding that jurisdiction rested, alternatively, with the Court of Genoa or Udine, as well as the Court of Civitavecchia, as the worker was resident in Civitavecchia and performed his work through remote working from his home.
The appeal to the Italian Court of Cassation and the decision taken by the Court
The company appealed against that judgment by way of a single legal ground, in which it objected to the erroneous interpretation of the law and of the established case-law regarding the determination by the Court of Rome of the jurisdiction of the Court of Civitavecchia.
The company pointed out, in fact, that there was no basis for establishing jurisdiction in the Court of Civitavecchia, since there was no nucleus of assets organised for the exercise of the business at the employee’s home, thus excluding jurisdiction at the place where remote working was carried out.
The order issued by the Italian Court of Cassation starts from an analysis of Article 413 of the Italian Code of Civil Procedure, which states that the employment judge has geographical jurisdiction alternatively in the place where the relationship was established in the place where the company is located, or, finally, in the place where the company dependence to which the employee is attached is located.
According to the ruling of the Italian Court of Cassation under comment, with specific reference to ‘company dependence’, reference must be made to the place where the employer has located a nucleus, albeit modest, of assets organised for the exercise of the business (Italian Court of Cassation No. 14449/2019; Italian Court of Cassation No. 4767/2017).
Where, on the other hand, as in the case in question, the remote working takes the form, according to the employee, solely of the place where the service is carried out, without any other related aspect that in any way characterises the home as a company dependence, then this criterion cannot be taken into consideration for the purposes of identifying geographical jurisdiction. Consequently, the only criteria which remain applicable are represented by the place where the contract was concluded or the place where the employee was employed.
As a result, the Italian Court of Cassation upheld the Company’s application on the question of jurisdiction, declaring the alternative geographical jurisdiction to be exclusively the courts of Udine and Genoa but not the court of Civitavecchia.
Other related insights:
With its recent judgment No. 17643 of 20 June 2023, the Italian Court of Cassation affirmed the principle that the limitation period for a worker’s right to receive compensation in lieu of untaken holiday leave and weekly rest starts from the termination of the employment relationship, except where the employer proves that the worker was put in a position to enjoy the accrued holiday leave.
In particular, the employer must provide proof that it has invited the worker to take the holiday leave at a time that ensures that the leave still provides the person concerned with the rest and relaxation for which it is intended. In addition, the employer must have warned the worker that, if the holiday leave is not taken, it will be lost at the end of the reference period.
In the case examined by the Italian Court of Cassation, a worker, following the termination of the employment relationship due to resignation, brought an action before the Court of Milan requesting, among other claims, an order that the employer pay her compensation in lieu of untaken holiday leave.
The Court partially accepted the worker’s request, while the Court of Appeal of Milan upheld the worker’s cross-appeal, recognising the right to receive compensation in lieu of holiday leave for a total of 248 days (instead of 124 days as ordered by the Court at first instance).
The employer appealed to the Italian Court of Cassation against the judgment of the Court of Appeal of Milan, submitting, among other things, that the worker’s rights were time-barred, given the ten-year limitation period for compensation in lieu of holiday leave that must start to run during the employment relationship.
In this regard, the Italian Court of Cassation, confirming the rulings of the first instance judges, stated that the limitation period of the worker’s right to compensation in lieu of untaken holiday leave and weekly rest ‘starts from the termination of the employment relationship, unless the employer proves that the right to holiday leave and weekly rest was lost by that worker because he or she did not enjoy it despite the invitation to use it; the invitation must be clear and given in good time to ensure that the holiday leave and rest periods provide the person concerned with the rest and relaxation for which they are intended, and must contain a notice that, in the event of non-enjoyment, such leave and rest will be lost at the end of the reference period or an authorised carry-over period’.
In conclusion, therefore, it is better not to postpone holiday leave when it is the employer who invites the worker to use it to avoid the risk of definitively losing the right, including that relating to the monetisation provided for at the end of the employment relationship.
Other related insights:
On 18 May 2023, the Italian Court of Cassation, criminal division, judgment no. 21153,ruled that ‘risk assessment is a specific function of the employer, which cannot be delegated even through delegating functions to another person and any failure by the RSPP to cooperate in the drafting of the Risk Assessment Document (Documento di Valutazione dei Rischi, “DVR” may, at most, give rise to concurrent but not exclusive liability of the latter’.
The facts of the case
The case stemmed from a work-related accident that occurred to an employee of a company who, while arranging a stack of pallets that had not been properly stacked, was struck – on the head and shoulder – by pallets falling to the ground, sustaining injuries that resulted in an illness lasting more than 40 days.
Both the Court of Vercelli and the Court of Appeal of Turin convicted the sole director and ‘employer for company safety purposes’ of the criminal office under Article 590 of the Italian Criminal Code (‘negligent personal injury’). The court considered that the director was guilty of negligence, carelessness, inexperience and failure to comply with the rules for the prevention of accidents at work and for not having assessed the risk inherent in the construction of the stack of pallets.
An appeal to the Italian Supreme Court was lodged against the Court of Appeal ruling, alleging a breach of the law in relation to the finding of criminal liability. Specifically, the appellant – i.e. the employer for company safety purposes – argued that the appointment of an RSPP exonerated him from any liability. The RSPP should have, among other things, (i) assessed the risks associated with the specific work activity based on the delegation responsibilities; (ii) trained employees; (ii) evaluated the risks associated with the specific activity and (iii) drafted the DVR.
The Italian Court of Cassation
The Italian Court of Cassation affirmed that the assessment of the risks to the health and safety of workers present within a company is one of the employer’s specific obligations. This obligation, established by Article 17 of Italian Legislative Decree no. 81/2008, is non-delegable. ‘Any failure by the RSPP to cooperate in the drafting of the DVR may, at most, give rise to concurrent but not exclusive liability of the latter’. The Court also clarified, on this point, that the RSPP will be liable where it is possible to trace an injurious event back to a dangerous circumstance that the RSPP should have known about and reported and, instead, failed to do so.
For all these reasons, the Court of Cassation held the appeal to be inadmissible as the ground of appeal was manifestly unfounded.
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In conclusion, it seems possible to be able to state that an employer for company safety purposes is criminally liable if it is ascertained that an injury at work is caused by a failure to carry out a preventive assessment of the risk as well as by a failure to adopt the relevant measures necessary to reduce or eliminate that risk.
Other related insights:
The definition of worker for safety purposes according to the Court of Cassation
