Exceeding the sick leave period represents a delicate balance between employee rights and business needs. Over the years, case law has provided important guidance on the matter. What checks must the employer carry out, and what are the employee’s responsibilities?
The issue of exceeding the sick leave period is a key aspect of human resource management. On the one hand, employees suffering from serious or prolonged illnesses need sufficient time off to recover without losing their job. On the other hand, businesses must ensure operational continuity and may struggle to manage prolonged absences.
Managing the exceeding of the sick leave period requires a balanced and careful approach. Employers must verify compliance with contractual regulations and act in good faith, avoiding hasty or discriminatory measures.
Employees, in turn, have a duty to properly communicate their condition and comply with the rules set by their contract and the law. Over time, case law has provided essential guidance to balance these interests. However, only a case-by-case assessment can ensure the right equilibrium between employee protection and business needs.
The accrual period is mainly regulated by Article 2110 of the Civil Code, which states that in the event of illness, the employee has the right to keep his job for a period determined by collective agreements. Once this limit has been exceeded, the employer may terminate the relationship, subject to the right to compensation for notice.
Moreover, Law 300/1970 (Workers’ Statute) in Article 18 goes into the merits of the termination of employment: the rule protects the worker from dismissals announced in violation of Article 2110, second paragraph, of the Civil Code, providing the right to reinstatement in the workplace.
Over the years, several Supreme Court rulings have made headlines regarding the exceeding of the sick leave period and have clarified that the employer must consider the specific situation of the employee and evaluate possible alternatives before proceeding with dismissal.
In addition to the case that gained media attention of an employee dismissed when only a few days remained before the end of the sick leave period (Supreme Court Ruling No. 24766/2017), here are some rulings that have made history:
To avoid legal disputes, the employer must carry out careful checks before taking disciplinary measures. In particular, they must:
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The negative implications of criminally unlawful acts on the proper execution of work performance, in compliance with the employee’s obligations, constitute just cause for dismissal.
The Supreme Court, in ruling no. 31866 of December 11, 2024, established that unlawful conduct outside the workplace may have disciplinary relevance, as the employee is not only required to perform the assigned tasks but also, as an ancillary obligation, to refrain from engaging in behaviors outside the workplace that could harm the employer’s moral and material interests or compromise the relationship of trust. If such conduct is of a particularly serious nature, it may also justify dismissal for just cause.
As is well known, Article 2119 of the Civil Code defines just cause for termination as “a cause that does not allow the continuation, even temporarily, of the employment relationship.” This means an event, attributable to one of the parties, of such severity that any alternative to immediate termination would be inadequate to protect the interests of the terminating party.
The concept of just cause is rooted in the broad scope of its definition and is classified among the so-called “general clauses” (Supreme Court ruling no. 10964 of May 8, 2018). It is an open-ended concept that requires interpretation through the assessment of factual elements (including the evolution of social awareness and the perception of the severity of certain events) and legal considerations.
As stated by the Supreme Court, “just cause for dismissal is a concept that the law, in order to adapt regulations to a complex and ever-changing reality, defines through a provision (classified among the so-called general clauses) with limited content, outlining a generic model that requires specification through interpretation by considering both external factors related to general awareness and the principles implicitly referenced by the provision itself” (Supreme Court, September 30, 2022, No. 28515).
Moreover, it has been recently reaffirmed that the consideration of external factors related to general awareness is an integral part of the interpretative process (Supreme Court, August 22, 2024, No. 23029).
In outlining the types of employee behavior that may constitute just cause for dismissal, case law has established that the breach of trust may result either from a violation of contractual obligations or from off-duty conduct.
An employee is required not only to fulfill contractual obligations but also to adhere to ancillary behavioral duties, which, even outside the workplace, mandate the protection of the employer’s moral and financial interests. Violating these obligations undermines the trust necessary for the proper continuation of the employment relationship.
For example, in several cases, the courts have deemed violations of the so-called “minimum ethical standard” as just cause for dismissal. This refers to conduct that any reasonable person—including the employee—should recognize as contrary to the fundamental principles of civil coexistence, fairness, and good faith.
One significant case involved the dismissal for just cause of a school bus driver following a final criminal conviction for engaging in acts unequivocally aimed at causing the termination of his partner’s pregnancy. The Supreme Court of Cassation upheld the legitimacy of the dismissal, citing the objective severity of the offense and its social disvalue, which directly impacted the employer’s public image (Supreme Court, April 3, 2024, No. 8728).
Similarly, the off-duty possession of a significant quantity of narcotics for trafficking purposes was considered to seriously affect the employment relationship, particularly in terms of the employee’s future reliability. The Supreme Court ruled that an employee is required not only to perform their assigned tasks but also to refrain from behaviors—outside the workplace—that could compromise the trust-based relationship with the employer, which is subject to the assessment of the trial judge (Supreme Court, August 6, 2015, No. 16524).
In that case, the Supreme Court upheld the lower court’s decision, which had deemed the employee’s conduct particularly severe in terms of future reliability. The employee, a “chef de rang” at a thermal resort, was responsible for room service, a role involving frequent contact with guests. The court found the conduct even more serious given that the drugs were purchased from a colleague.
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With note no. 9326 of December, 9, 2024, the National Labour Inspectorate (i.e. “Ispettorato Nazionale del Lavoro” or “INL”) provided an overview of the new sanctions regime introduced by Article 27 of Italian Legislative Decree No. 81/2008, as amended by Italian Decree-Law 19/2024 (converted by Law 56/2024). This regime applies to all violations concerning the credit license (i.e., “patente a crediti”) as of October 1, 2024.
Paragraph 11 of Article 27 establishes a system of penalties for companies operating on construction sites without a valid credit license or with a score lower than 15 points (it should be noted that the initial score is 30 points.)
The legislator has provided for an administrative sanction equal to 10% of the value of the works (excluding VAT), with a minimum penalty of EUR 6,000, which is not subject to the warning procedure under Article 301-bis of Italian Legislative Decree No. 81/2008. The value of the works to be considered is the amount specified in the contract or subcontract. If the value of the works is unknown or below the minimum threshold, the penalty of Euro 6,000 will still apply. However, a reduction to one-third of the penalty is possible if the fine is paid within 60 days.
The law also defines the liability of the principal. The principal is responsible for verifying whether the contractor holds a valid credit license or an equivalent document. If the company is not required to hold the license, the principal must verify the SOA qualification certificate. This certificate verifies the company’s economic, organizational, and technical qualifications, ensuring that the company meets specific criteria required for the execution of public works.
The note distinguishes between different hypotheses regarding the principal’s duty of verification.
The authority responsible for issuing the injunction is the Labour Inspectorate (i.e. “Ispettorato del Lavoro”) in the jurisdiction where the employee who detected the violation is based. In the absence of a specific provision, all supervisory authorities listed in Article 13 of Italian Legislative Decree No. 81/2008 are authorized to identify the violation and impose the relevant sanction.
Penalties must be paid via the “PagoPA” system (the Italian government’s digital payment platform) for fines issued by the Labour Inspectorate. For fines issued by other supervisory bodies, payment must be made to a dedicated account, with the reason for the payment clearly indicated.
Another key update introduced by paragraph 11 is the exclusion of penalized companies from participating in public works under Italian Legislative Decree No. 36/2023 for a period of six months. In this case, the supervisory authority must notify the sanction both to the Italian National Anti-Corruption Authority (i.e., “ANAC”) and the Ministry of Infrastructure, which will issue the exclusion order. The penalized company or self-employed worker will be removed from the construction site by inspection authorities and will be notified that they are prohibited from working on any temporary or mobile construction site.
The new sanctions regime strengthens the responsibilities of both principals and companies operating on construction sites, imposing significant penalties on those who fail to comply with the newly enacted legislation. Penalties vary according to the specific situation, but adherence to the regulations is crucial, not only to ensure compliance with the current legal framework but also to protect workers’ health and safety.e il rispetto della sua ratio più profonda, ossia tutelare e assicurare la salute e la sicurezza dei lavoratori.
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With ruling no. 2618 of February 4, 2025, the Italian Supreme Court upheld the legitimacy of the dismissal for just cause of an employee who, while on parental leave, engaged in parallel employment, thus abusing this right.
In the case in exam, during his parental leave, the employee had started a car-buying and selling businesswithout giving prior notice to the employer. The activity was uncovered following an investigation carried out by a private agency commissioned by the employer. According to the investigation, it emerged that the parallel employment was neither occasional nor episodic, thus conflicting with the purposes of paid parental leave. As the Supreme Court stated, these purposes «require that during its enjoyment, the time and energy of the working father be dedicated, even through his presence, to fulfilling the emotional needs of the child».
This conduct, constituting an abuse of parental leave, therefore justified the employee’s dismissal. The Supreme Court stated: «where it is established that the parental leave is used by the father to engage in a different work activity, it constitutes an abuse of the right for diversion from the function of the right, which can be assessed by the judge to determine the existence of a just cause for dismissal. It is not relevant that the performance of such activity contributes to a better organization of the family».
Therefore, the Court reaffirmed that parental leave, while being a right of the working parent, cannot be used for purposes unrelated to those for which it was established.
In conclusion, the abuse of parental leave justifies a dismissal, as it constitutes not only a serious violation of the employee’s duty of loyalty but also a behavior with clear social disvalue, in light of the social and economic costs involved.
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The appointment for the 5th Welfare & HR Summit of Il Sole 24 Ore is on Thursday 20 February from 3 p.m. onwards. The event will see the participation of Vittorio De Luca among the experts convened to take stock of the new paradigms for companies, between new regulations and social changes.
Vittorio De Luca will analyse the main labour law aspects related to the discipline of contracting and the innovations introduced, most recently, by the ‘Corrective Decree’, which, in line with the most recent regulatory, administrative and jurisprudential interventions, aims to make the contracting system more transparent, with the ultimate goal of protecting workers employed in outsourcing. An approach that will also have a considerable impact on companies that use third-party suppliers, which are obliged to adapt quickly.
Click here for further details and to register for the event.
