By order no. 10734 of 22 April 2024, the Italian Court of Cassation ruled that, in the event of a failed conciliation attempt, as required under Article 7 of Italian Law no. 604/1966 in the case of dismissal for justified objective reasons of workers hired before March 2015, the employer is not required to send the employee notice of dismissal, as the indication of the intention to interrupt the relationship contained in the minutes drawn up before the Local Employment Inspectorate (Ispettorato Territoriale del Lavoro, ‘ITL’) is sufficient.
As a result of the conciliation attempt held before the ITL under Article 7 of Italian Law no. 604/1966, the minutes of failure to conciliate were drawn up, in which the employer’s intention to proceed with the dismissal of the employee for justified objective reasons was formally stated.
Subsequently, the worker challenged her dismissal, objecting, in the first place, that it was ineffective because it was not in writing.
As part of the so-called ‘summary phase’ of the Fornero Proceedings, as well as in the subsequent opposition phase, the Judge found that the dismissal had not been in writing, with a consequent order against the employer to reinstate the employee.
The employer appealed to the Italian Court of Appeal which overturned the judgment handed down in the context of the opposition phase.
The Italian Court of Appeal ruled, on the one hand, that there had been written notice of dismissal because the intention to terminate the employment relationship was contained in the minutes signed by both parties at the end of the procedure under Article 7 of Italian Law no. 604/1966. However, the Court also held, on the other hand, that as the principle of fairness and good faith had been breached with respect to the choice of the worker to be dismissed, the dismissal was unlawful and made an order against the employer under the provisions of Article 18, paragraph 7, of the Italian Workers’ Charter.
The employee appealed against the judgment before the Italian Court of Cassation and the company, as well as submitting a defence lodged, in turn, a cross-appeal.
The Italian Court of Cassation – in upholding the second instance judgment – noted, first of all, that the purpose of a written notice of dismissal lies in the need to make the employee aware of the action interrupting the relationship.
This function – the Court continued – is fulfilled if the intention to proceed with the termination is formally stated by the employer, in an institutional setting (such as the ITL where the conciliation attempt under Article 7 of Italian Law no. 604/1966 is held), in minutes that are also signed by the employee.
The legislative wording of Article 7, paragraph 6, third sentence of Italian Law no. 604/1966 (“If the conciliation attempt fails and, in any case, the deadline referred to in paragraph 3 has elapsed, the employer may give notice of the dismissal to the worker”) outlines a legal condition (precedent) and a term (dilatory). For this reason, once the first has been fulfilled or the second has expired, the employer “may give the employee notice of the dismissal”.
With regard to the meaning to be attributed to the legal condition precedent (i.e., the failure of the conciliation attempt), according to the Italian Court of Cassation “the literal reading” suggests that the legislator “has given importance to the objective failure of the conciliation attempt rather than to the chronological and formal date of the finalisation of the minutes drawn up in the local conciliation commission”.
Moreover, the Court continues, “the wording of the provision does not require that the notice of dismissal which may be given by employer ‘if the conciliation attempt fails’, must take place in a different context and subsequent to that of the aforementioned minutes”.
In this sense, the Court argues, “nothing to protect the interests of the worker could plausibly justify the assumption that the notice of dismissal to the worker must necessarily take place in a context distinct from the minutes drawn up at the meeting before the appropriate commission, provided of course that the notice of dismissal already stated in that forum complies with the additional provisions on dismissal, starting with that of the [notice being] in writing under Article 2, paragraph 1 of Italian Law no. 604/1966”.
According to the Italian Court of Cassation judges, it follows that, where the conciliation attempt under Article 7 of Italian Law no. 604/1966 fails and the employer confirms his or her intention to terminate the relationship, there is no need to subsequently send the employee a letter of dismissal.
On these grounds, the Italian Court of Cassation therefore rejected the appeal brought by the worker, confirming that she was only entitled to compensation and not reinstatement.
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A non-compete agreement which is conditional upon the preservation of the original duties introduces an element of vagueness that undermines the entire agreement.
This principle was confirmed by the Italian Court of Cassation in order no. 10679 of 19 April 2024. In this case, the non-compete agreement provided that if the employee’s duties changed during the term of the relationship, the employee would be free from the non-compete obligation 12 months from the new duties. Moreover, the agreement provided that the geographical area subject to the non-compete agreement related to the Veneto region and to a further area that the company reserved the right to define on termination of the relationship.
In light of the above, it follows that the content of the non-compete agreement must be determined in advance and any clauses that result in its vagueness (such as the modification of the duties or of the geographical area) result in its nullity.
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An employee dismissed for drug trafficking has been reinstated and compensated. The drug related conviction occurred in the past and pre-dated the employment, when the company took over the staff from the outgoing company after taking over a contract held under a public administration tender. The Italian Court of Cassation, employment division, by order no. 8899 of 4 April 2024 held that the material fact existed but that this did not give rise to a legal ground: an old conviction has no disciplinary relevance where the employer does not prove “the relevance of the old facts on the relationship’s operation”. A criminal judgment that becomes final during the relationship, onthe other hand, may trigger the employer’s withdrawal for just cause if the relationship of mutual trust with the company fails.
Continue reading the full version published on (Italia Oggi, page 14).
With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment on the Italian legislation on the calculation of absences from work caused by disabling diseases in the protected period (periodo di comporto).
The question posed to the European Court of Justice can be summarised as follows: can the 180-day protected period provided for by the Confcommercio National Collective Bargaining Agreement (Contratto Collettivo Nazionale di Lavoro, ‘CCNL’) (which applies without distinction to both disabled and non-disabled persons) be regarded as a reasonable accommodation that is sufficient for avoiding indirect discrimination against disabled workers?
The order is based on Directive 2000/78/EC, relating to equal treatment in employment and occupation of disabled workers, implemented in Italy by Italian Legislative Decree no. 216/2013.
On the basis of this Directive, a line of case-law has developed at the EU level and, subsequently, at national level, which has held that the indiscriminate application of the same period of protection to disabled workers and non-disabled workers amounts to indirect discrimination. This is because it results in unequal treatment to the disadvantage of the disabled person who, due to the vulnerability inherent in the disability, is placed at a particular disadvantage compared to other workers, given the risk of greater possibility of accumulating days of absence and thus more easily reaching the limits of the protected period.
Applying Article 32 of the Italian Constitution, which elevates the right to health to a constitutionally guaranteed right, and Article 38 of the Italian Constitution, paragraph 2, Article 2110 of the Italian Civil Code provides that a worker who is absent due to illness has the right not only to keep his or her job, but also to payment, when provided for by law or by collective bargaining, of remuneration or compensation to the extent and for the time determined by special laws, customs or according to equity (so-called protected period).
Only once this period has elapsed, can the employer lawfully terminate the employment contract for exceeding the protected period under Article 2118 of the Italian Civil Code, i.e. by giving the worker notice or the related compensation in lieu.
In this way, Article 2110 of the Italian Civil Code strikes a balance between opposing constitutional rights, both of which are considered worthy of protection: the worker’s right to health and job retention and the employer’s right to freedom of private economic initiative.
In the words of the Joint Chambers of the Italian Court of Cassation, the protected period represents “a balance between the employee’s interest in having an adequate period of absences to recover following illness or accident and that of the employer not to have to bear indefinitely the repercussions that such absences cause to the company organisation” (Joint Chambers of the Italian Court of Cassation no. 12568/2018).
The European Court of Justice has interpreted Directive 2000/78/EC, concerning “equal treatment in employment and occupation”, by introducing the European concept of disability.
As is clear from the EU case-law on the subject, disability is defined as “a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one” (to that effect, European Court of Justice, 11 April 2013, HK Danmark, C-335/2011 and C-337/2011, paragraph 47, and European Court of Justice, 18 January 2018, Ruiz Conejero, C-270/16. Along the same lines, in a broader sense on the concept of disability, see also the European Court of Justice, 18 December 2014, FOA (Fag og Arbejde), C-354/2013, paragraph 53, according to which obesity also falls within the concept of disability, within the meaning of Directive 2000/78, when it hinders the worker’s participation in professional life).
On this subject, it should also be pointed out that the concept of E disability is completely autonomous and, therefore, “unconnected” from the recognition, in national law by the competent bodies, of disability under Italian Law no. 68/99 or the benefits under Italian Law no. 104/92 (Italian Court of Cassation no. 23338/2018, Italian Court of Cassation no. 6798 of 2018. In this regard, see also more recently: Court of Ravenna, 27 July 2023, Court of Appeal of Rome, 27 November 2023, Court of Rovereto, 30 November 2023 and Court of Rome, 18 December 2023).
Having clarified the concept of disability and considering the issue of the protected period, it is then necessary to take into consideration the provisions of Article 2(2)(b) of Directive 2000/78/EC on indirect discrimination on grounds of disability.
Under EU law, such discrimination exists where an apparently neutral provision is liable to put a person with a disability at a particular disadvantage, unless:
On this point, the European Court of Justice, with the recent judgment of 18 January 2024, in case C-631/22 (in wikilabor.it), referring to its earlier decisions (see judgment of 21 October 2021, Komisia za zashtita ot diskriminatsia, C-824/19, EU-C-2021-862, paragraph 59 and the case-law cited therein), reiterated that Directive 2000/78/EC must be interpreted in accordance with the provisions of the UN Convention, which, in Article 2 states that “discrimination on the basis of disability” means “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
Both European and national jurisprudence have expressed their views on these concepts of disability and indirect discrimination in relation to exceeding the protected period and dismissal of persons with disabilities falling within the EU definition.
Specifically, the European Court of Justice has affirmed that national legislation that, without making any distinction between non-disabled and disabled workers, allows an employer to dismiss a disabled worker due to absences from work attributable to his or her condition, conflicts with the prohibition on discrimination based on disability.
According to the European Court of Justice, such a rule “is liable to place disabled workers at a disadvantage and, so, to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of Directive 2000/78”.
The Italian Court of Cassation is of the same opinion, and taking into account the wording of Article 3, paragraph 3-bis, of Italian Legislative Decree no. 216/2003, recently ruled that “in relation to dismissal, the application of the ordinary protected period to the disabled worker constitutes indirect discrimination, because the failure to take into account the risks of greater morbidity of disabled workers, precisely as a consequence of disability, transforms the apparently neutral criterion of calculating the short protected period into a discriminatory practice against the specific social group protected as being in a particularly disadvantaged position”.
It follows that the application of the ordinary protected period to a disabled person could constitute indirect discrimination and, as a result, a dismissal ordered for exceeding the protected period is to be considered null and void, with the worker’s right to reinstatement.
To reduce the risk of discrimination, the employer, under Article 3, paragraph 3-bis, of Italian Legislative Decree no. 216/2003, while respecting the freedom of economic and private initiative and therefore in compliance with those principles that allow the free organisation of the company, must – on the basis of diligence and good faith – identify “reasonable accommodation” measures that allow the removal or minimisation of situations that may aggravate the employee’s physical conditions.
In the opinion of the Court of Cassation, the need to identify such accommodation measures “(…) does not mean that a maximum limit in terms of days of sick leave for a disabled worker cannot or should not be fixed … However, that legitimate aim must be achieved by means that are appropriate and necessary, and therefore proportionate (…)”.
In this regard, several indications have been provided by lower courts’ case-law regarding potential reasonable accommodation measures that the employer can implement according to the actual needs of people with disabilities.
According to that case-law, these include:
Ultimately, therefore, the risk of not taking into account the excessive morbidity of the person with a disability remains the employer’s responsibility, who can only deal with the issue with the appropriate tools which will be different from those provided for other employees.
The referring judge, after citing the European Court of Justice case on which the national case law in the lower courts and the Court of Cassation is based, raised doubts on the need to prescribe a specific duration of the protected period for disabled people, considering that the Italian legislation on illness already provides significant protection to the disabled person. The judge also expressed doubts about the applicability of mechanisms such as the employer’s deduction of periods of absence due to disability from the protected period.
Continue reading the full version on Modulo Contenzioso 24 of Il Sole 24 Ore.
In its recent Order no. 6782 of 14 March 2024, the Italian Court of Cassation affirmed the following principle of law: “in the case of a permanent employment relationship, the employer’s waiver of the notice period, in the face of the worker’s resignation, does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
An employee resigned and her employer agreed to exempt her from working during her notice period, without paying her the relevant compensation in lieu of notice.
The resigning worker applied to the court for payment of the compensation in lieu of notice.
The Court of Pisa upheld the worker’s application and, on appeal, the ruling was also confirmed by the Florence Court of Appeal.
Both lower courts based their reasoning on the assumption that the employer, despite having exempted the appellant from working during her notice period, was nevertheless obliged to pay the equivalent of the amount of the salary that would have been due to the applicant for the notice period.
The company appealed against the decision of the Court of Appeal to the Italian Court of Cassation.
The Italian Court of Cassation judges, reversing the first instance ruling, held that in the context of a permanent employment relationship, the employer’s waiver of the notice period in the face of the employee’s resignation “does not give rise to the latter’s right to obtain compensation in lieu of notice because of the mandatory nature of notice”.
The judges therefore emphasised that notice is mandatory and, therefore, if one of the parties exercises the right to withdraw with immediate effect, the relationship also terminates immediately, and the only obligation that arises is that of the withdrawing party to pay the compensation in lieu of notice.
According to the Italian Court of Cassation judges, however, the other party can waive the notice without paying anything to the other party, who cannot claim any right to the continuation of the employment relationship until the notice ends.
On this basis, the Italian Court of Cassation upheld the appeal brought by the company, ruling that the resigning worker was not entitled to compensation in lieu of notice.
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