With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment on 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 the EU 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.
Applying Article 32 of the Italian Constitution, which elevates the right to health to a constitutionally guaranteed right, and Article 38 of the Italian Constitution, paragraph 2, Article 2110 of the Italian Civil Code provides that a worker who is absent due to illness has the right not only to keep his or her job, but also to payment, when provided for by law or by collective bargaining, of remuneration or compensation to the extent and for the time determined by special laws, customs or according to equity (so-called protected period).
Only once this period has elapsed, can the employer lawfully terminate the employment contract for exceeding the protected period under Article 2118 of the Italian Civil Code, i.e. by giving the worker notice or the related compensation in lieu.
In this way, Article 2110 of the Italian Civil Code strikes a balance between opposing constitutional rights, both of which are considered worthy of protection: the worker’s right to health and job retention and the employer’s right to freedom of private economic initiative.
In the words of the Joint Chambers of the Italian Court of Cassation, the protected period represents “a balance between the employee’s interest in having an adequate period of absences to recover following illness or accident and that of the employer not to have to bear indefinitely the repercussions that such absences cause to the company organisation” (Joint Chambers of the Italian Court of Cassation no. 12568/2018).
The European Court of Justice has interpreted Directive 2000/78/EC, concerning “equal treatment in employment and occupation”, by introducing the European concept of disability.
As is clear from the EU case-law on the subject, disability is defined as “a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one” (to that effect, European Court of Justice, 11 April 2013, HK Danmark, C-335/2011 and C-337/2011, paragraph 47, and European Court of Justice, 18 January 2018, Ruiz Conejero, C-270/16. Along the same lines, in a broader sense on the concept of disability, see also the European Court of Justice, 18 December 2014, FOA (Fag og Arbejde), C-354/2013, paragraph 53, according to which obesity also falls within the concept of disability, within the meaning of Directive 2000/78, when it hinders the worker’s participation in professional life).
On this subject, it should also be pointed out that the concept of E disability is completely autonomous and, therefore, “unconnected” from the recognition, in national law by the competent bodies, of disability under Italian Law no. 68/99 or the benefits under Italian Law no. 104/92 (Italian Court of Cassation no. 23338/2018, Italian Court of Cassation no. 6798 of 2018. In this regard, see also more recently: Court of Ravenna, 27 July 2023, Court of Appeal of Rome, 27 November 2023, Court of Rovereto, 30 November 2023 and Court of Rome, 18 December 2023).
Having clarified the concept of disability and considering the issue of the protected period, it is then necessary to take into consideration the provisions of Article 2(2)(b) of Directive 2000/78/EC on indirect discrimination on grounds of disability.
Under EU law, such discrimination exists where an apparently neutral provision is liable to put a person with a disability at a particular disadvantage, unless:
On this point, the European Court of Justice, with the recent judgment of 18 January 2024, in case C-631/22 (in wikilabor.it), referring to its earlier decisions (see judgment of 21 October 2021, Komisia za zashtita ot diskriminatsia, C-824/19, EU-C-2021-862, paragraph 59 and the case-law cited therein), reiterated that Directive 2000/78/EC must be interpreted in accordance with the provisions of the UN Convention, which, in Article 2 states that “discrimination on the basis of disability” means “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
Both European and national jurisprudence have expressed their views on these concepts of disability and indirect discrimination in relation to exceeding the protected period and dismissal of persons with disabilities falling within the EU definition.
Specifically, the European Court of Justice has affirmed that national legislation that, without making any distinction between non-disabled and disabled workers, allows an employer to dismiss a disabled worker due to absences from work attributable to his or her condition, conflicts with the prohibition on discrimination based on disability.
According to the European Court of Justice, such a rule “is liable to place disabled workers at a disadvantage and, so, to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of Directive 2000/78”.
The Italian Court of Cassation is of the same opinion, and taking into account the wording of Article 3, paragraph 3-bis, of Italian Legislative Decree no. 216/2003, recently ruled that “in relation to dismissal, the application of the ordinary protected period to the disabled worker constitutes indirect discrimination, because the failure to take into account the risks of greater morbidity of disabled workers, precisely as a consequence of disability, transforms the apparently neutral criterion of calculating the short protected period into a discriminatory practice against the specific social group protected as being in a particularly disadvantaged position”.
It follows that the application of the ordinary protected period to a disabled person could constitute indirect discrimination and, as a result, a dismissal ordered for exceeding the protected period is to be considered null and void, with the worker’s right to reinstatement.
To reduce the risk of discrimination, the employer, under Article 3, paragraph 3-bis, of Italian Legislative Decree no. 216/2003, while respecting the freedom of economic and private initiative and therefore in compliance with those principles that allow the free organisation of the company, must – on the basis of diligence and good faith – identify “reasonable accommodation” measures that allow the removal or minimisation of situations that may aggravate the employee’s physical conditions.
In the opinion of the Court of Cassation, the need to identify such accommodation measures “(…) does not mean that a maximum limit in terms of days of sick leave for a disabled worker cannot or should not be fixed … However, that legitimate aim must be achieved by means that are appropriate and necessary, and therefore proportionate (…)”.
In this regard, several indications have been provided by lower courts’ case-law regarding potential reasonable accommodation measures that the employer can implement according to the actual needs of people with disabilities.
According to that case-law, these include:
Ultimately, therefore, the risk of not taking into account the excessive morbidity of the person with a disability remains the employer’s responsibility, who can only deal with the issue with the appropriate tools which will be different from those provided for other employees.
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.
Continue reading the full version on Modulo Contenzioso 24 of Il Sole 24 Ore.
The Court of Cassation, in its recent Order No 3361 of 3 February 2023, reiterated its consistent approach concerning the allocation of the burden of proof in anti-discrimination judgments, specifying that the allocation criteria do not follow the ordinary criteria of Article 2729 of the Italian Civil Code, but rather the special ones that establish a concession in favour of the applicant.
The burden of proof in discrimination matters
Under Article 25, paragraph 2-bis of Italian Legislative Decree No 198/2006 (Equal Opportunities Code) any treatment which, by reason of the state of pregnancy, maternity or paternity, including adoption, or by reason of the ownership and exercise of the corresponding rights, places the worker in at least one of the following conditions, constitutes discrimination:
With reference to the allocation of the burden of proof, Article 40 provides that where the applicant provides factual evidence, including statistical data on recruitment, remuneration schemes, assignment of tasks and qualifications, transfers, career advancement and dismissals, capable of establishing, in precise and consistent terms, a presumption of acts, agreements or conduct which are discriminatory on grounds of sex, the burden of proof as to the non-existence of the discrimination lies with the defendant.
The Court of Cassation interpreted this provision to mean that it ‘does not reverse the burden of proof, but only mitigates the ordinary evidentiary regime in favour of the applicant, providing that the employer, in line with the provisions of Article 19 of Directive No 2006/54/EC (as interpreted by the EU Court of Justice 21 July 2011, C-104/10), bears the burden of proving the non-existence of discrimination, but on condition that the applicant has previously provided the court with facts, also inferred from statistical data, capable of establishing, in precise and consistent terms, even if not serious, the presumption of the existence of acts, agreements or conduct which are discriminatory on grounds of sex’ (Court of Cassation No 25543/2018).
Consequently, the Court of Cassation stated, ‘the burden is on the worker to allege and demonstrate the risk factor and the treatment he assumes to be less favourable than that reserved for persons in similar conditions, while at the same time deducing a significant correlation between these aspects, while the employer must deduce and prove unequivocal circumstances, capable of excluding, for the sake of clarity, seriousness and consistency of meaning, the discriminatory nature of the termination’ (Court of Cassation No 23338/2018).
It follows, on a practical level, that in anti-discrimination proceedings, the employee who invokes the unlawfulness of the conduct is required to prove – also by means of presumptive evidence – that the treatment is less favourable than that received by colleagues in similar conditions. The employer, on the other hand, in order to exclude her, will have to demonstrate that the decision would have been made with the same parameters also in respect of any worker without the risk factor who would have been in the same position (on the same basis, among many see: Court of Cassation, judgment No 1/2020).
Moreover, the need to make corrections to the normal criteria of the burden of proof in cases of discrimination – which makes it undoubtedly difficult for the worker to offer valid evidence in support of his or her allegations – had already been noted by the Community rules, to the extent that they offer all the individual Member States the freedom to provide for a less burdensome system of allocation of the burden of proof, expressly providing that ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of that principle… [This Directive] shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs’. (Directive No 2006/54/CE).
The facts of the case and the outcome of the proceedings of first and second instance
The case originates from the appeal under Article 38 of Italian Legislative Decree No 198/2006, brought by a female apprentice to obtain a finding of and redress for the allegedly discriminatory conduct of the employer in relation to the withdrawal of the professional apprenticeship contract. The worker complained, in fact, that out of approximately two hundred apprentices hired on a permanent basis, the applicant’s non-recruitment was related to her two pregnancies during her apprenticeship.
The court of first instance upheld the worker’s appeal against the decree rejecting her application issued at the end of the interim stage. The court ordered the company to cease the discriminatory conduct and to remove its effects, reinstating the employee in the job previously occupied, with the reconstruction of her career in legal and financial terms, as if the dismissal had never occurred.
The Court of Appeal reversed the first instance ruling, stating that the evidence put forward by the worker in support of the discriminatory nature of the employer’s conduct lacked the precision and consistency required to establish a presumption of discrimination that could only be overcome in the presence of negative evidence offered by the employer.
The territorial court observed that ‘the dismissal is a neutral act in itself, lacking consistency, even more so in the specific case where the notice of dismissal was communicated approximately 17 months after the second maternity leave; similarly, the extension of the training contract for a period corresponding to that of the absences due to pregnancy, maternity and illness, constituted a neutral factor inspired by the principle, for the protection of both parties to the contract, of guaranteeing the effectiveness of the training’.
Continue reading the full version published on Modulo 24 Contenzioso Lavoro of Il Sole 24 Ore.
The Supreme Court of Cassation, with order no. 14254 of 24 May 2019, stated that, in the context of a collective dismissal due to staff cuts, in order to avoid indirect discrimination, the percentage of women dismissed should not be greater than that of the entire female work force in relation to the jobs being considered.
Facts
A worker who considers her dismissal to be discriminatory, brought proceedings before the judicial authorities in order to obtain a declaration of unlawful dismissal for breach of the percentage of female labour workforce provided for in Article 5(2) of Law No 223/1991. This provision states that ‘the undertaking may not (…) dismiss more women than the percentage of female labour employed in respect of the jobs in question’.
The case involved six male and three female employees: two women (including the plaintiff) were dismissed compared to one male employee. Since the total percentage of female workers employed was 33.33% and the actual percentage dismissed was 66.66%, the regulations were consequently breached according to the plaintiff.
The Supreme Court of Cassation, confirming the decision in merits, rejected the appeal filed by the company, thus confirming the interpretation of Article 5, paragraph 2, of Law 223/1991.
The decision of the Supreme Court of Cassation
In the context of a collective procedure for the reduction of personnel, the above rule requires that the comparison to be made in relation to the personnel to be expelled from the production cycle must first be proportional to the planned job reduction. In essence, the comparison should cover the business area covered by the procedure, so as to ensure that the proportion of female employment in the total number of employees remains the same.
The Supreme Court of Cassation, in this sense, specifies that Article 5, paragraph 2, of Law 223/1991 does not provide for a comparison between the number of workers of the two sexes before and after employment, but requires verification of the percentage of women workers so as to proceed with the dismissal of a number of employees in which the female component must not exceed the percentage previously determined.
This means that, in the business context, employees to be dismissed must be chosen in such a way as to ensure that the proportion of female employment in the total number of employees remains constant.
Rebus sic stantibus is necessary, in order to avoid so-called indirect discrimination in collective redundancy procedures, for maintaining the existing balance in terms of the proportion between male and female workers.
