In its decision of January 9, 2025, no. 460, the Italian Supreme Court ruled on the dismissal of a disabled executive for economic reasons, stating that the discriminatory nature of the dismissal is not excluded by the presence of another valid reason, such as the elimination of the position due to company restructuring.
An executive, dismissed due to company restructuring and the elimination of her position, challenged the dismissal, claiming that the termination was discriminatory on the grounds of health and disability.
In the first instance and appellate proceedings, the judges confirmed the existence of an organizational reason for the dismissal, rejecting the executive’s appeal.
In particular, with regard to the alleged discriminatory dismissal on the grounds of health and disability, the Court of Appeal had deemed the appellant’s complaints to be unfounded.
Against the judgment of the Court of Appeal, the executive filed an appeal with the Italian Supreme Court.
In upholding the employee’s appeal, the Italian Supreme Court ruled that the Court of Appeal had wrongly stated that the dismissal could not be discriminatory due to the strong element of the reorganization reason established in the judgment, thus contradicting the “established case law, which instead shows that a dismissal can be, directly or indirectly, discriminatory even when a legitimate reason, such as an economic reason, is present”.
With regard to the burden of proof, the Italian Supreme Court also found that the Court of Appeal had violated the standard of proof established by the legal system by shifting the entire burden of proof and pleadingto the employee, on the grounds that she had failed to provide the necessary elements to prove the discrimination.
On this point, the Italian Supreme Court clarified that “when the claimant provides factual elements, including statistical data, from which the existence of discriminatory acts, agreements, or behaviors can be presumed, the burden of proof lies with the defendant to demonstrate the non-existence of discrimination”.
For the above reasons, the Italian Supreme Court, upholding the employee’s appeal, overturned the contested judgment and referred the case back to the Court of Appeal of Rome, «which, in a different composition, will carry out a new examination, applying what has been established with regard to the discriminatory dismissal and its nullity».
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The Italian Supreme Court, with decision no. 170 dated January 7, 2025, was called to rule on the legitimacy of the dismissal of a disabled employee for exceeding the protected period.
Specifically, a disabled employee challenged the ruling of the Court of Appeal, which had determined that applying the same protected period for both non-disabled and disabled workers did not constitute indirect discrimination.
In this case, the Supreme Court stated that the employer, although fully aware of the employee’s disability, proceeded with the dismissal for exceeding the absence period, applying the same criteria used for non-disabled workers, without investigating whether the absences were related to the employee’s specific condition.
Ultimately, the Supreme Court deemed the objections raised by the employee to be well-founded, upheld the appeal, and rejected the contested ruling.
Moreover, the Court offered an interesting point of reflection, emphasizing “the need for collective bargaining agreements to explicitly address the issue of absence periods for disabled workers, taking into account their specific conditions, as merely considering absences due to certain illnesses or of a certain severity is not sufficient”.
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With sentence No. 148, published in the Official Gazette on 31 July 2024, the Constitutional Court declared the illegitimacy of Article 230-bis, third paragraph, of the Civil Code, in the part that does not include the ‘de facto cohabitee’ among the participants in the family business.
The ruling originates from the claim made by the cohabitee of a farm owner, later deceased, to obtain from the latter’s heirs the payment of her share in the family business, in which she claimed to have worked continuously for about eight years.
The Court emphasised that while there are still some differences of discipline with respect to the family based on marriage, when it comes to fundamental rights, these must be recognised for all, without distinction of any kind.
On the basis of these premises, the Court therefore declared the rule unconstitutional due to the failure to include the de facto cohabitee in the list of participants in the family business.
Continue reading the full version published on The Platform.
On December 12, 2024, the Court of Cassation admitted the referendum requests filed in July by the CGIL concerning, among other things, the regulation of unlawful dismissals under the so-called the so-called increasing protection employment contract (“contratto a tutele crescenti” in Italian parlance) under Legislative Decree No. 23/2015.
This system has always interested public opinion and political debate, and still represents a point of fracture between the social partners. Suffice it to say that while, last September 8, 2024, at the first public meeting between CGIL leader Maurizio Landini and Confindustria president Emanuele Orsini, the latter confirmed that “overcoming the Jobs Act would be a plunge into the past, we have a gap between labor supply and demand that is worth 43 billion a year. For us today the issue is attracting people, not overcoming a measure that is working,” on the other hand, the CGIL leader said that with the Court of Cassation’s green light to the referendum questions “a great opportunity opens up for the Country.”
Given the persistent gap between the positions of the social partners and the strong impact that the “contratto a tutele crescenti” has on public opinion (proof of this is, most recently, the achievement of the referendum quorum), it seems useful to assess whether, from a mere technical/legal point of view, the legislation set forth in Legislative Decree No. 23/2015 currently presents substantial differences from the protection offered by Article 18, of the Workers’ Statute, as amended by Law No. 92/2012, such as to make its repeal – in the opinion of the referendum supporters – indispensable with a view to expanding the scope of applicability of reintegration protection.
In its original formulation, the legislature’s intervention was characterized by the automatic determination of the compensation due in cases of wrongful dismissal, based on a mathematical formula, to overcome a system hinging on the discretion of the judge.
Continue reading the full version published in Il Sole 24 Ore.
The Supreme Court of Italy, in its ruling 31866/2024, clarified the limits of dismissal for just cause concerning conduct that occurs outside the workplace.
The case concerns an employee, a bus driver, dismissed for just cause after being sentenced to two years and six months of imprisonment for charges including sexual assault, domestic abuse, and physical violence.
Following the appeal of the dismissal, in which the employee argued that his conduct was unrelated to his work activities, both the Court of First Instance and the Court of Appeal of Italy upheld the legitimacy of the dismissal for just cause.
The Italian Court of Appeal ruled that the employee’s behaviour, which was committed over a long period of time and involved several serious offences (including “sexual assault against his wife, mistreatment with humiliation and domineering behaviour, considered to be habitual, as well as physical violence”), justified the dismissal for just cause.
This was also due to the concrete risk that the employee, a bus driver, could lose self-control and fail to fulfil his essential duties of respect and care towards service users or third parties, given that his responsibilities included driving vehicles in traffic and constant interaction with the public.
The Court of Appeal of Italy, in determining the legitimacy of the dismissal, also took into account the employer’s duty of care, both towards third parties concerning the suitability of staff interacting with the public (under Article 2043 of the Civil Code) and towards its own employees (under Article 2087 of the Civil Code). Additionally, the Court took into account the employee’s previous disciplinary issues, including acts of insubordination and loss of control.
The employee challenged the decision of the Court of Appeal and appealed to the Italian Supreme Court on several grounds.
In upholding the judgment of the Italian Court of Appeal, the Supreme Court held that:
The Supreme Court also stated that the Italian Court of Appeal did not establish an automatic link between the criminal conviction and the dismissal for just cause, but correctly recognized the negative impact of the criminal conduct on the proper performance of the employee’s duties, which are designed to protect the users of public services. Furthermore, the Court of Appeal correctly took into account the appellant’s previous disciplinary record, which indicates insubordination and a loss of control.
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