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.
Italian Law 104/1992 grants employees paid leave to assist family members with disabilities, with the cost covered by INPS (the National Institute for Social Security). However, misuse of this benefit has led to judicial investigations to identify potential violations of the law. Case law has helped clarify what constitutes abuse.
The law grants leave for caregiving but does not clearly define the conditions under which its use becomes abusive. In general, courts have adopted a broad interpretation, stating that caregiving includes all tasks a disabled person cannot perform independently, not just personal assistance at home.
In a recent ruling (October 10, 2024, no. 26417), the Italian Supreme Court clarified that caregiving does not require constant presence at the family member’s home, but can include errands, as long as they are aimed at the disabled person’s well-being. The Court also confirmed that using leave outside working hours does not count as abuse, since the leave is granted on a daily, not hourly, basis.
In another ruling (September 9, 2024, no. 24130), the Court stated that personal activities, as long as they do not interfere with caregiving, are not considered abusive. However, if the employee engages in activities far from caregiving, such as going to the beach instead of assisting a family member (Cass. Civ., Labor Section, June 16, 2021, no. 17102), it is considered misuse, and the employer can take disciplinary action, including dismissal for just cause.
Employers can hire investigative agencies to check for abuse, but these investigations must be conducted within legal boundaries, respecting the employee’s privacy.
Continue reading the full version published in Il Sole 24 Ore.
Article 33 of Law 104/1992 regulates paid leave ‘for the assistance, social integration and rights of disabled persons’.
These permits consist in the possibility for public or private, full-time or part-time employees to be absent from work, while retaining the right to remuneration and figurative contribution coverage for pension purposes, in order to assist a disabled person in a situation of seriousness, who is not hospitalised on a full-time basis.
A ‘disability in a situation of seriousness’, pursuant to Article 3(3) of Law 104/1992, is defined as a single or multiple impairment that has reduced personal autonomy, related to age, in such a way as to require permanent, continuous and comprehensive assistance in the individual sphere or in the sphere of relationships.
Continue reading the full version in Modulo Contenzioso 24 of Il Sole 24 Ore.
The Court of Cassation, with Order No. 1364 of 20 January 2025, clarified important aspects relating to the obligation of repêchage in the event of dismissal for justified objective reasons. In particular, the Court of Cassation – excluding the reinstatement of the employee – ruled that the obligation of repêchage does not require the employer to relocate the employee to lower tasks in the workforce if there are no tasks compatible with the dismissed employee’s professional profile.
The case originates from an appeal brought by an employee, who held the position of export salesman, who was dismissed following the cancellation of his position. Challenging the dismissal, the worker claimed that the company had not adequately explored all the possibilities of outplacement within the company, thus requesting reinstatement.
In the course of the proceedings, the Court of First Instance had held that the dismissal was unlawful from a procedural point of view, and had also recognised that the repêchage obligation had not been complied with. However, the Supreme Court, reforming the first instance ruling, established that the search for alternative duties should not extend to positions that are not strictly compatible with the employee’s professionalism.
Continue reading the full version published on Norme & Tributi Plus Lavoro.
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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