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?
Other related insights:
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.
Other related insights:
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.
Other related insights:
One of the fundamental requirements in the context of disciplinary complaints is consistency between the charge alleged against a worker and the underlying sanction imposed. This principle is aimed at ensuring a fair and just procedure in the context of employment relationships, to prevent the employer from carrying out dismissals based on circumstances over and above or different from those set out in the disciplinary letter.
The recent ruling of the Italian Court of Cassation
The Italian Court of Cassation reiterated the aforementioned principle with Order No. 26042/2023 of 7 September 2023.
The case concerned a worker who had been fired following accusations of forgery and theft of fuel, offences which had simultaneously been the subject of a criminal trial.
The worker, initially dismissed, was subsequently acquitted of these charges in the criminal proceedings, for not having committed the crime.
In the criminal sentence of acquittal, the Court of first instance and the Court of Appeal held the dismissal to be unlawful.
The company challenged the decision before the Italian Court of Cassation, arguing, first, that the requirements under criminal law for the effectiveness of a criminal judgment in civil proceedings were lacking, and, second, that there had been a failure to examine certain additional facts sufficient to irreparably damage the bond of trust with the dismissed worker.
The Court’s decision
The Court of Cassation stated that “in the current procedural system, in the absence of a definitive rule which exhaustively sets out the means of proof, the judge may legitimately use evidence not expressly referred to by law as the basis of his or her decision .” Consequently, in the Court’s opinion, “there is no doubt that the sentence of acquittal for not having committed the crime, even after abridged proceedings, can be classified as atypical evidence of the non-existence of the disciplinary charge falling within the perimeter of the parallel criminal charge, the re-evaluation of which in fact is precluded before the Court of Cassation”.
Furthermore, the Court of Cassation rejected the alleged failure to evaluate “omissions” and “breaches” outside the disciplinary complaint. This is on the basis of the principle that disciplinary complaints may not be changed, which prevents the employer from expanding their scope during the judicial proceedings.
Other related insights:
The Court of Appeal of Trento decided with judgment No. 8 of 6 July 2023 that an employer cannot dismiss a worker suffering from an illness that leads to a disability immediately after exceeding the protected period, but must make reasonable arrangements for the preservation of the job, in compliance with the principles of good faith and fairness. These principles also include informing the employee of the possibility of taking unpaid leave before exceeding the protected period.
The facts of the case
The ruling originates from a judgment of the Court of Rovereto (No. 54 of 2022) which held that a dismissal imposed on a worker suffering from type 2 diabetes, which led to the amputation of a finger, at the end of the maximum period of absence provided for by the National Collective Bargaining Agreement (contratto collettivo nazionale di lavoro, ‘CCNL’), was lawful. The Court held that the dismissal was lawful on the grounds that the worker’s disability had not been certified before the termination of the relationship and that there was no obligation on the employer to inform the employee before the protected period was exceeded.
The worker appealed to the Court of Appeal against the Court of Rovereto’s judgment.
The decision of the Court of Appeal
The Court of Appeal came to a different conclusion, basing its reasoning on a finding of indirect discrimination against the worker. The Court recalled at the outset the guidance from the European Court of Justice, according to which disability is ‘a limitation which results in particular from physical, mental or psychological impairments’ which may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. The definition is, in reality, very broad and independent of the formal recognition of an invalidity ‘understood as a reduction – ascertained by the bodies responsible for this – of working capacity’. In addition, according to the Court, it is necessary to make a distinction between illness and disability, which is characterised by the ‘permanence of the illness and its long duration’.
In the specific case, the judgment referred to the fact that the company had been periodically informed by the worker of his state of illness and that it was in this context that it could have taken ‘appropriate protection initiatives’. The Court held that the fact that the applicable CCNL provided for unpaid leave only at the request of the person concerned does not exclude the employer’s duty to take an active role. The employer should in fact inform the employee of the approaching expiry of the protected period and of the possibility of requesting leave as a form of accommodation. This action would be in line with the principles of fairness and good faith of the employment relationship, even if formally the employee had not yet reached the status of legal disability.
The Court therefore declared the dismissal null and void as discriminatory, as the company did not prove that it had made adequate efforts to reasonably accommodate the employee. The company also did not prove that these measures would have caused serious organisational or financial problems, nor that they would have been disproportionately onerous. As a result, the employee was reinstated in the workplace, with compensation equal to the total remuneration between the date of dismissal and the effective date of reinstatement.
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