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’.
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