The Court of Cassation, in its decision no. 24130 of 9 September 2024, provided important clarifications regarding the use of work permits under Law no. 104 of 1992, stating that a worker may be absent for short personal activities, such as shopping, and that this does not automatically entail an abuse of the right or a violation of the welfare purposes established by the law.
The dispute originated from an employer’s complaint against an employee who had used the so-called “104 leave” to go shopping in a market. In particular, the employer claimed that the employee had uses the leave for activities that did not refer to caring for her disabled family member and had therefore dismissed her for cause, considering that such conduct constituted an abuse of the benefit provided by law.
However, the Court of first instance had rejected the latter interpretation, emphasizing that the activity in question was marginal. In the present case, the employee had, in fact, gone shopping on her way to the home of the assisted family member. Consequently, the dismissal was considered to be unlawful, since the social purposes provided for by Law no. 104/92 had been fulfilled.
Confirming the decision, the Supreme Court ruled that Law no. 104/92 does not require the worker to be present at the home of the family member to be assisted for the entire duration of the working day. In fact, the Court clarified that, although absence from work must be justified on welfare grounds, this does not exclude the possibility of carrying out other minor activities, as long as these activities do not entail a clear violation of the purpose for which the leave was granted. In fact, the judgment reiterates that leave is granted on a daily basis and not on an hourly or chronometric basis.
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The Court of Cassation has recently confirmed that the ‘abusive’ use of leave to care for disabled family members, as referred to in Article 33, par. 3 of Italian Law no. 104 of 1992, not only justifies dismissal, but can also be ascertained by private investigators. In this case, the employee had challenged his dismissal for just cause communicated by the company which, following an investigation, had ascertained that the employee, during the days in which he had taken leave under Law 104/1992 to assist his mother, had carried out activities that were incompatible with assisting his parent (going shopping and engaging in recreational activities). His dismissal was confirmed by the trial judges, who held that termination of employment without notice was lawful since the ‘wilfully serious’ violations committed by the employee prevented the temporary continuation of employment as they damaged the fiduciary link between the parties to the relationship. The Court also recognised the lawfulness of the investigation carried out by the company to verify the existence of unlawful acts committed by the employee while taking leave. The employee appealed against this decision before the Court of Cassation, challenging the decision on the merits, mainly with regard to the lawfulness of the checks carried out by the company, for the latter had not informed the employee of these checks and how they were carried out so that they were detrimental to the dignity of the employee and were contrary to privacy legislation.
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INPS, with its circular letter no. 45 of 25 March 2020, provided operating instructions regarding the use of parental leave for the COVID-19 emergency and increase of leaves as per the law no. 104 of 5 February 1992 both included in Decree Law no. 18 of 17 March 2020.
Reference normative framework
The circular letter in question concerns the special measures introduced by articles 23 and 24 of the Decree Law 18 of last 17 March (so-called “Decreto Cura Italia”, hereinafter “Decree”), aimed at making it easier for families and workers to handle the epidemic emergency in progress.
Specifically, article 23 of the Decree introduces an extraordinary parental leave to take care of minors during the period when pre-school educational services and scholastic activities of all schools are suspended ordered by the Presidential Decree of 4 March 2020.
The leave, for a total of 15 days, can be used by workers employed in the private sector, workers enrolled in the INPS “Gestione Separata” pension scheme, self-employed workers registered with INPS and employees of the public sector. Alternatively to the aforesaid leave, parents with children not over age 12 have been given the possibility to use a bonus of 600 euro to purchase baby-sitting services.
Instead, article 24 of the Decree, includes an increase in the number of days of paid leave as per law no. 104 of 5 February 1992 for an additional 12 days which can be used in the months of March and April 2020.
These measures are also applicable for adoptive and foster parents or those who have minors in temporary placements.
Period to use leave and relative indemnity
The Institute with the circular letter in question, set out the operating procedures for being able to use the leave, specifying, at the same time that parents employed in the public sector must follow the instructions provided with the Public Administration where they are employed.
As mentioned, use of the extraordinary parental leave, may occur for a continuous or fractioned period, however not longer than a total of 15 days starting from 5 March 2020 is alternatively granted to just one of the parents for family. This requires, for this benefit, that no parent benefits from wage support instruments provided in the event of suspension or termination of work or another parent unemployed or not working.
Operating procedures for using the leave
The new COVID-19 leave guarantees greater protections compared to those that the parents can benefit from for care of their children using ordinary parental leave. Specifically, the new parental leave grants parents with children not older than 12 an indemnity equal to 50% of their wages, calculated as stated by article 23 of the Legislative Decree no. 151 of 26 March 2001. INPS specifies that (i) calculation of the days and payment of the indemnity occurs with the same procedures envisaged for payment of parental leave and (ii) the protection is granted even if the individual couple limits have been reached included in the specific laws on parental leave.
Instead, parents with children between ages 12 and 16, despite being granted leave, i.e. the right to be absent from work for the period educational services and schools are closed, is not granted payment of any indemnity.
Those who intend to use the leave must:
Greater protections are also provided for parents enrolled in “Gestione Separata” compared to ordinary parental leave. The COVID-19 leave guarantees parents with children not over age 12 an indemnity equal to 50% of 1/365 of their income, identified according to the calculation basis used for determining maternity leave.
Similarly also for self-employed workers registered with INPS the protection is expanded from an indemnity of 30% of pay provided only in the case of children up to age 1, to an indemnity totaling 50% of daily conventional pay established annually by law, based on the type of self-employment carried out, for worker parents with children up to age 12.
The Decree also includes an alternative benefit for subjects who receive the above leave who may request a bonus for baby-sitting services up to a maximum amount of 600 euro which, can reach 1,000 euro for workers in the healthcare, defense and security sector.
INPS, with its circular letter no. 44 of 24 March 2020 provided the operating instructions to be able to request this bonus, specifying that parents with children not over age 12 may benefit, but also those who at the time the application is submitted have already turned 12, as long as by the date of 5 March they were within the required age limit.
This age limit does not apply for children with disabilities in verified serious situations, enrolled with schools of all levels or those at day centers for the disabled.
The Institute, reiterating the contents of the Decree, clarified that the benefit is due as long as the family does not have another parent who is the beneficiary of income support instruments in the event of suspension or termination of their work (for example, NASPI, CIGO, unemployment benefits, etc.) or another parent who is unemployed or not working, with whom an incompatibility exists and ban on accumulation.
Extension of paid leaves as per law no. 104/1992
Article 24 of the Decree, as anticipated, includes an increase in the number of days of paid leave as per the law no. 104/92. Therefore, subjects who have the right to the leaves in question may use, in addition to the three days per month already guaranteed by the aforesaid law, another 12 working days to use in the months of March and April.
INPS specified that the 12 days can also be used consecutively during one month or broken down into hours.
Moreover, the possibility of accumulating various leaves for the same worker is confirmed. Therefore, if the worker cares for more than one disabled person, he/she can accumulate for the months of March and April 2020 another 12 days per dependent disabled person, in addition to the ordinary monthly leave of 3 days.
The Court of Cassation, with judgment No. 1394 filed on 22 January 2020, once again drew attention to the use and potential abuse of leave to assist disabled family members pursuant to Article 33, paragraph 3, of Law No. 104 of 1992. In particular, the Supreme Court, in affirming the principle that such leave is granted “in order to assist the disabled person and in a direct causal relationship with that assistance“, has ruled out that they may be used “merely as compensation for the energy used by the employee for that assistance“.
The facts
The Court of Appeal of L’Aquila upheld the decision of the Court of Pescara where the latter had considered it lawful to dismiss a worker for just cause for abusing his leave under Article 33 paragraph 3 of Law No. 104/1992.
The District Court found evidence of four instances of abuse of leave by the employee, in light of a report from an investigating agency (commissioned by the employer). In particular, it had been demonstrated that out of four days of leave, the employee had gone to the home of their disabled father for only 15 minutes on only one of the four days.
Against the decision of the Court of Appeal, the worker appealed to the Court of Cassation on the sole ground of appeal, alleging infringement and misapplication of Article 33 paragraph 3 of Law No. 104 of 1992. Specifically, the worker pointed out that the rule referred to does not impose a necessary time connection between the period of the leave and the period of direct assistance to the disabled family member.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the appeal and confirming the lawfulness of the dismissal for just cause, recalled a well-established trend in the case law according to which “on the basis of the rationale of Law No. 104 of 1992, Article 33, paragraph 3, which attributes to the employee (…) who assists a disabled person in a serious situation (…) the right to three days’ paid monthly leave, covered by imputed contributions, it is necessary that the absence from work is directly related to the need for which the right is recognised, i.e. assistance to the disabled person“. (See Court of Cassation No. 1529/2019; Court of Cassation No. 8310/2019; Court of Cassation No. 17968/2016; Court of Cassation No. 9217/2016; Court of Cassation No. 8784/2015)
The Supreme Court emphasises that the concept of assistance – even if it is to be understood in a broad sense (since it may also consist in carrying out tasks of an administrative, practical or any nature) – cannot in any event disregard the existence of a direct causal relationship with the interest of the assisted family member (See Judgement of the Court of Cassation No. 23891/2018).
Therefore, the Supreme Court continues, “an employee who does not make use of the leave provided for by the aforementioned Article 33, in line with the function of the same Article, commits an abuse of the right in that it deprives the employer of the job performance in violation of the trust placed in the employee and constitutes, with respect to the social security fund providing the salary compensation, an undue receipt of the allowance and a misuse of the welfare intervention” (see Court of Cassation No. 17968/2016).
The Court of Cassation, in the judgment in question, also confirms its case law regarding the lawfulness for the employer to use investigative agencies to monitor its employees. This, especially during periods of suspension of the employment relationship, when becoming aware of the worker’s behaviour, which, although unrelated to the performance of the work activity, is relevant from the point of view of the correct fulfilment of the obligations deriving from the employment relationship (See Court of Cassation No. 18411/2019).
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In view of the above, no function other than that of assistance to the family member with a disability can be attributed to the leave to assist this family member or that is in any case in direct causal relation to it.
It is therefore to be excluded that the leave pursuant to Article 33, paragraph 3, Law 104/1992 may have a purely compensatory or restorative function of the energy used by the worker for the assistance provided.
Therefore, according to the content of the judgment in question, where an employee uses the leave in question for purposes other than those referred to above, they will be committing an abuse of rights which is also relevant from a disciplinary point of view and which will make it lawful for the employer to dismiss them for just cause.
