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.
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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.
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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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The introduction of artificial intelligence (AI)-based systems in the workplace is revolutionizing business processes, allowing companies to achieve significant advantages in terms of efficiency, precision, and productivity, even in the management and organization of their workforce.
However, the adoption of such tools raises several critical issues, and it must necessarily align with the principle of non-discrimination in the workplace.
In Italy, there have already been several rulings that have addressed the issue from different angles, highlighting the risks associated with the use of algorithms and decision-making systems in workforce management.
For instance, the Court of Palermo, with a ruling on November 17, 2023, determined the discriminatory nature of the excellence evaluation system used by a well-known home delivery company for assigning tasks to its couriers.
The platform used by the company relied on a system known as the “excellence score“, which rewarded the most productive couriers—those who made the most deliveries—and the most reliable ones, i.e. those who worked extensively during high-demand hours, such as evenings or holidays, granting them priority access to selecting subsequent job assignments.
However, this created a significant disparity of treatment compared to workers who could not meet such requirements.
The examined rulings clearly highlight the potential risks associated with the use of artificial intelligence systems in the workplace. These tools, often perceived as inherently impartial due to their technological and non-human nature, can in fact produce discriminatory or inequitable results that are difficult for the user to identify.
The rulings analyzed highlight the risks associated with the use of new artificial intelligence systems, with particular attention to the issue of ensuring equal treatment and preventing discrimination that could arise from their use in the workplace.
It will therefore be crucial for companies to invest time and resources in acquiring a thorough understanding of artificial intelligence tools and learning to use them effectively and responsibly. This is not only to gain competitive advantages in the market but also to ensure that the adoption of technology is fully compliant with existing regulations.
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