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.
Continue reading the full version published in Agenda Digitale.
With sentence No. 148, published in the Official Gazette on 31 July 2024, the Constitutional Court declared the illegitimacy of Article 230-bis, third paragraph, of the Civil Code, in the part that does not include the ‘de facto cohabitee’ among the participants in the family business.
The ruling originates from the claim made by the cohabitee of a farm owner, later deceased, to obtain from the latter’s heirs the payment of her share in the family business, in which she claimed to have worked continuously for about eight years.
The Court emphasised that while there are still some differences of discipline with respect to the family based on marriage, when it comes to fundamental rights, these must be recognised for all, without distinction of any kind.
On the basis of these premises, the Court therefore declared the rule unconstitutional due to the failure to include the de facto cohabitee in the list of participants in the family business.
Continue reading the full version published on The Platform.
The Supreme Court of Italy, in its ruling 31866/2024, clarified the limits of dismissal for just cause concerning conduct that occurs outside the workplace.
The case concerns an employee, a bus driver, dismissed for just cause after being sentenced to two years and six months of imprisonment for charges including sexual assault, domestic abuse, and physical violence.
Following the appeal of the dismissal, in which the employee argued that his conduct was unrelated to his work activities, both the Court of First Instance and the Court of Appeal of Italy upheld the legitimacy of the dismissal for just cause.
The Italian Court of Appeal ruled that the employee’s behaviour, which was committed over a long period of time and involved several serious offences (including “sexual assault against his wife, mistreatment with humiliation and domineering behaviour, considered to be habitual, as well as physical violence”), justified the dismissal for just cause.
This was also due to the concrete risk that the employee, a bus driver, could lose self-control and fail to fulfil his essential duties of respect and care towards service users or third parties, given that his responsibilities included driving vehicles in traffic and constant interaction with the public.
The Court of Appeal of Italy, in determining the legitimacy of the dismissal, also took into account the employer’s duty of care, both towards third parties concerning the suitability of staff interacting with the public (under Article 2043 of the Civil Code) and towards its own employees (under Article 2087 of the Civil Code). Additionally, the Court took into account the employee’s previous disciplinary issues, including acts of insubordination and loss of control.
The employee challenged the decision of the Court of Appeal and appealed to the Italian Supreme Court on several grounds.
In upholding the judgment of the Italian Court of Appeal, the Supreme Court held that:
The Supreme Court also stated that the Italian Court of Appeal did not establish an automatic link between the criminal conviction and the dismissal for just cause, but correctly recognized the negative impact of the criminal conduct on the proper performance of the employee’s duties, which are designed to protect the users of public services. Furthermore, the Court of Appeal correctly took into account the appellant’s previous disciplinary record, which indicates insubordination and a loss of control.
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“Violates the employer’s directives (even if implicit, but clear) the employee who, although in a hierarchically superior position to the holder of the access credentials to a company’s IT system, has them revealed in order to gain access without specific authorization: the protection of data through access credentials alone is sufficient to make such directives clear”. This has been established by the Supreme Court of Italy, Criminal Section V, no. 40295/2024.
An employee of a hotel in Chianciano Terme (Italy) had requested from another employee, directly subordinate to him, the access keys to the company’s IT system for the storage and promotional purposes of the customer database, which included about 90,000 individual records, accessing it for purposes unrelated to the mandate received. In the first two levels of judgment, was established the commission of the crime of «Unauthorized access to an IT or telematic system», under Article 615-ter, paragraph 1, of the Italian Penal Code.
The employee appealed to the Italian Supreme Court, claiming that it was not an abuse access, both because he had the power «in his capacity as director and superior manager of the employee» from whom he had requested for the credentials, «also for the purpose of supervising her work» and because until shortly before, he had a personal and direct access to those data.
The Supreme Court of Italy ruled that the offence of unauthorized access to IT systems (under Article 615-ter, paragraph 1, of the Italian Penal Code) also occurs in the case of a hierarchical superior using the access credentials provided by the employee.
The judges of the Italian Supreme Court did not find convincing the appellant’s argument that relied on his power to access any company location in order to carry out checks on those hierarchically subordinate to him. In the case of an IT system protected by credentials, the Court pointed out that «each authorized person has his/her own ‘key’ (i.e., the access credentials)». «This is because it is data which, quite simply, the owner considers should be protected, both by limiting access to those who are provided with such credentials and, at the same time, by ensuring that a digital trace is left of the individual access and of who carries them out ».
It is therefore incorrect to hold that the defendant «solely by virtue of his duties, automatically had the power to access data that, on the other hand, according to the employer’s discretionary assessment, were to remain available only to certain employees (even if subordinate to the appellant) »
Moreover, by doing so, the appellant made it «falsely appear that the access had been made by the employee who, imprudently, had revealed her credentials to him».
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