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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As recent news events have shown, even the fashion sector has not been spared the growing attention of the authorities (labour, tax and criminal) towards the world of service contracts.
The particular interest in such cases is rooted in the frequent use by Italian companies of third-party service providers that, in fact, with a not inconsiderable frequency do not meet the legal requirements to constitute so-called ‘genuine contracts’.
The issue is of some importance in view of the reference sanctions system, recently tightened by the legislator.
In fact, Decree-Law No. 19 of 2 March 2024 on ‘Further Urgent Provisions for the Implementation of the National Recovery and Resilience Plan (PNRR)’ has provided that, in the event that the existence of a non-genuine contract or fraudulent supply of labour is ascertained, the user of the staff is subject to certain financial penalties (up to a maximum of € 100.00 for each worker employed, for each day of work) and to imprisonment for up to 3 months.
In addition to these consequences, there are also others of a strictly labour law nature (i.e., the establishment of a subordinate employment relationship directly with the user of the work service, who will also be liable for any wages and contributions not paid to the staff) or fiscal consequences (e.g., the offence of issuing invoices for non-existent transactions may be charged).
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In its ruling no. 2058 of January 29, 2025, the Italian Supreme Court confirmed the legitimacy of a just cause dismissal for an employee who had publicly defamed her superiors via social media.
This case concerns an employee who was dismissed for just cause after posting defamatory statements on Facebook and sending a series of e-mails containing derogatory remarks about her superiors and the company.
Following the appeal, where the employee argued that her statements were simply an exercise of her freedom of speech and had not caused any real damage to the company’s reputation, both the Court of First Instance and the Court of Appeal upheld the dismissal. They concluded that the employee’s behavior had irreparably damaged the trust necessary for the employer-employee relationship.
The Court of Appeal specifically found that the employee’s actions «went beyond the formal boundaries of the right to criticize» thus justifying the dismissal for just cause.
Additionally, when evaluating the legitimacy of the dismissal, the Court of Appeal stated that «the e-mails sent from the company’s account and the posts on Facebook, marked by bitterness and acrimony and filled with vulgar and offensive language, clearly showed an intent to personally and professionally offend and humiliate her superiors, undermining any legitimate claim of protecting the company’s interests». The Second – Instance Court further highlighted that the employee’s conduct was not an expression of her right to criticize, but rather an attempt to harm the company’s reputation by mocking its leadership and suggesting unfounded corruption allegations.
The employee challenged the Court of Appeal’s decision by appealing to the Italian Supreme Court, raising several grounds for the appeal.
The Italian Supreme Court upheld the decision of the Court of Appeal, ruling that defamatory conduct on social media can indeed constitute just cause for dismissal, as it undermines the trust relationship between the employee and employer. The Court affirmed that the «expressions made by the employee went beyond the limits of acceptable criticism, making the defense of free speech inapplicable», and also stated that «whether the posts concerned the company itself is irrelevant, as they targeted the hierarchical superiors and clearly had disciplinary significance, especially when, as in this case, they exceeded the limits of formal propriety».
Finally, the Supreme Court emphasized that violations of the duties of loyalty and fairness – particularly when expressed publicly and on social media – can lead to a breakdown in the trust relationship, thus justifying the dismissal.
Other related insights:
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.
Other related insights:
On 20 February 2025 Vittorio De Luca took part in the fifth edition of the Welfare & HR Summit of Il Sole 24 Ore, analysing the main labour law aspects related to the discipline of contracting and the novelties introduced, most recently, by the ‘Corrective Decree’.
Here is the link to see an extract of his speech.
