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.
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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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With its order of 4 January 2024, the Court of Ravenna referred to the European Court of Justice the judgment of 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 Community 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.
According to this line of case-law, the dismissal of a disabled person who, because of that disability, exceeds the protected period, must be declared null and void, as it is discriminatory.
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.
Among the reasons preventing the introduction of differentiated protection, the Court of Ravenna noted that it would be impossible for the employer to distinguish absences caused by common illness from those due to disabling diseases, given that privacy regulations do not oblige the disabled person to disclose his or her state of health.
For the reasons summarised above, the referring court therefore asked the European Court of Justice to rule on the following questions:
(1) Does Directive 2000/78/EC preclude national legislation which does not provide for different rules between workers who can be classified as disabled and workers who cannot?
(2) If the national legislation were to be regarded in the abstract as constituting indirect discrimination, is the legislation itself nevertheless objectively justified by a legitimate aim and are the means of achieving that aim appropriate and necessary?
(3) Can the provision of unpaid leave, at the worker’s request, amount to suitable and sufficient reasonable accommodation for avoiding discrimination?
(4) Can an accommodation consisting of the employer’s duty to grant a further period fully paid by it, without obtaining consideration for work, be regarded as reasonable?
(5) For the purposes of assessing the discriminatory conduct of the employer, can (for the purposes of establishing the lawfulness or otherwise of the dismissal) the fact that even a possible further period of stability in the relationship paid for by the employer would not have enabled the disabled person to return to work, given his or her continuing illness, be taken into account?
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In its very recent judgment no. 2274 of 23 January 2024, the Italian Court of Cassation ruled that it is lawful for an employer to give notice of a second dismissal pending a judgment concerning a previous dismissal based on different grounds. However, the second dismissal has no effect if the first dismissal is declared lawful by a final judgment.
An employee, pending proceedings relating to a first dismissal, brought legal proceedings challenging a second disciplinary dismissal imposed on him by his employer.
The proceedings relating to this second dismissal were settled by the so-called ‘summary phase’ of the Fornero Proceedings with the annulment of the dismissal as only one of the alleged facts had been proven.
Both the employee and the employer appealed against the summary phase order.
The two sets of appeal proceedings were not joined and ended with two separate judgments, both declaring the invalidity of the supervening second dismissal. This was because, pending those judgments, the first instance court had held the first dismissal to be lawful and, subsequently, the Court of Appeal, again with reference to the first dismissal, had declared the worker’s appeal inadmissible.
The two judgments delivered in the context of the appeal phase relating to the second dismissal were appealed against by both the employer and the employee.
The Court of Appeal – following the intricate procedural sequence of events summarised above – declared the second dismissal invalid on the basis that there had been a judgment, albeit not final, which had affirmed the lawfulness of the first dismissal.
The employer appealed to the Italian Court of Cassation against the Court of Appeal’s decision.
Pending the appeal to the Italian Court of Cassation proceedings relating to the second dismissal, that court also ruled on the first dismissal, confirming its lawfulness.
In the judgment under discussion, the Italian Court of Cassation judges therefore noted, preliminarily, the loss of interest on the part of the employer in insisting on the annulment of the ruling declaring the invalidity of the second dismissal, because such ineffectiveness was now to be considered confirmed by the final judgment.
It was only to rule on the costs of the proceedings that the Italian Court of Cassation upheld the employer’s appeal on the following grounds.
In the first place, the Court ruled that, in an employment relationship, the employer, if it has already given the employee notice of dismissal, may lawfully give notice of dismissal for a second time, based on a different ground or reason, because the latter is completely autonomous and distinct from the first.
According to the Italian Court of Cassation judges, both acts of withdrawal are in themselves theoretically sufficient to achieve the purpose, since the second dismissal is effective only in the event that the previous dismissal is held to be invalid or ineffective by a final judgment.
It follows that the Court of Appeal should have ruled on the lawfulness or otherwise of the second dismissal, since the judgment relating to the first dismissal had not – at the time – yet been concluded with a final judgment.
The Italian Court of Cassation, accepting the appeal brought by the employer, consequently ordered the employee to pay the legal costs of the proceedings.
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By Order of 13 November 2023, no. 31561, the Italian Court of Cassation ruled that, to fully comply with the repêchage obligation (obligation to relocate), it is necessary to assess whether hires made following the termination for justified objective reasons are of the same level of classification as the dismissed employee.
An employee, employed as a cashier in a bar, challenged her dismissal for abolition of her position.
Following the first instance judgment, in which it was ascertained that the termination was unlawful, the employer appealed.
The Territorial Court, reversing the ruling of the court of first instance, held that the dismissal was lawful. The court based this decision on evidence not only of the abolition of the job of cashier, but also of the fact that the worker had always and only performed the duties of cashier, having never performed duties as a counter or table attendant, tasks that were subsequently assigned to newly hired staff.
The judges of second instance also specified that “the fact – which is completely incidental and random – that multiple qualifications are placed in the same level of classification by the collective agreement is of no relevance. This allocation, in fact, is relevant for other purposes, i.e. to identify the regulatory and remuneration regime of the employment relationship of the employees thus classified, but it is completely <neutral>, i.e. irrelevant, for the purposes of the interchangeability of the related tasks”.
The Court of Appeal’s decision was appealed by the employee on several grounds.
The Italian Court of Cassation – accepting the appeal brought by the employee – ruled, preliminarily, that the employer, in fulfilling its repêchage obligation, cannot disregard careful consideration of the national collective bargaining agreement (contratto collettivo nazionale di lavoro, ‘CCNL’) applicable to the employment relationship.
Indeed, according to the judges of the Italian Court of Cassation, in the case of dismissal for justified objective reasons, and in the light of the new Article 2103 of the Italian Civil Code, the reference to the levels of classification described by a collective agreement is a relevant factor.
The Court specified that the CCNL “constitutes a factor that the judge will have to assess to ascertain whether or not the person who was dismissed was, in fact, able – on the basis of objectively verifiable evidence adduced by the employer and having regard to the specific training and entire professional experience of the employee – to carry out the duties of those who were hired ex novo, even if it is at the same or lower level”.
The Court of Cassation, finding no such assessment in the contested judgment on the merits, therefore upheld the employee’s appeal.
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