With Order no. 26697 of 21 September 2023, the Italian Court of Cassation ruled that an employer can deny holidays requested by a worker to avoid exceeding the limit of the job retention period only in the event that there are actual and genuine obstacles.
Under Articles 32 and 38 of the Italian Constitution the right to health is elevated to a constitutionally guaranteed right. On their basis, Article 2110 of the Italian Civil Code provides that a worker who is absent due to illness has the right not only to retain his or her job, but also to the payment, when provided for by law or by collective bargaining, of remuneration or allowances to the extent and for the time determined by special laws, by corporate rules, by custom or according to equity (the so-called ‘job retention period’ (‘periodo di comporto’)).
Only once this period has elapsed may the employer legitimately withdraw from the employment contract for exceeding the job retention period under Article 2118 of the Italian Civil Code, i.e. by granting the employee notice or the compensation in lieu thereof.
Thus, Article 2110 of the Italian Civil Code achieves a balancing act between conflicting constitutional rights, both of which are considered worthy of protection: the employee’s right to health and to keep his or her job and the employer’s right to freedom of private economic initiative.
Compatibility between holidays and illness: brief case law overview
The right to an annual period of paid leave is a constitutional principle, enshrined in Article 36, paragraph 3, of the Italian Constitution, which confirms that it is a right that cannot be waived: “The worker has the right… to paid annual leave, and cannot waive it”.
Applying the above-mentioned constitutional principle, Article 2109 of the Italian Civil Code states that:
– how holidays are taken is determined by the employer, taking into account business needs and the employee’s interests;
– the employer must notify the employee in advance of the period fixed for the taking of the holiday;
– the notice period cannot be counted as holiday time.
It follows from the above that the right to take leave is imposed by mandatory rules, including those of constitutional importance, which are aimed at protecting the person, personality and dignity of the worker.
The purpose of taking leave is, in fact, to allow the recovery of psycho-physical energy and the full expression of the worker’s personality during the enjoyment of free time.
There are, however, frequent cases in which a worker absent due to illness and unable to return to work at the end of the job retention period, requests that his or her right to retain his or her post be extended for a further period equal to that of the accrued and untaken leave at that date.
In this scenario, the employee’s interest in the enjoyment of the holiday period is, therefore, disconnected from recovery of psycho-physical energy (because it is clear that the sick employee will not be able to enjoy any recovery during the illness: on this point Italian Constitutional Court, judgment no. 616 of 30 October 1987), and is linked, according to well-established case law, to job retention.
Therefore, in such cases, the question arises as to whether the sick employee is actually entitled to be formally placed on leave in order to suspend the accrual of the job retention period and thus avoid dismissal.
The case law of the Italian Court of Cassation, in resolving the question, has oscillated over the years between solutions that are more or less advantageous for the employee.
The most recent guidance had denied the employee this right, affirming, on the basis of the principle that it is not possible to change the grounds for absence from work, the lawfulness of dismissal for exceeding the job retention period, with the employee being entitled only to compensation in lieu of notice (Italian Civil Court of Cassation, Employment Division, no. 5294, 29 September 1998; Italian Civil Court of Cassation, Employment Division, no. 5504, 30 October 1983).
However, after the Constitutional Court’s ruling no. 616 of 30 December 1987, in which the Constitutional Court judges declared Article 2109 of the Italian Civil Code constitutionally unlawful for being in conflict with Articles 3 and 36 of the Italian Constitution, insofar as it did not provide that illness arising during the holiday period would suspend the job retention period, and deferred to the legislature and collective bargaining the definition of detailed regulations to actually implement the principle established therein, the Italian Supreme Court of Cassation reached the opposite conclusion.
A questionable interpretation of the Constitutional Court’s judgment had, in fact, led the Italian Supreme Court to hold that there was a principle of automatic conversion of sick leave into holiday leave. This was on the basis of the “principle that the job retention period, for the purposes of Article 2110, second paragraph, of the Italian Civil Code, is interrupted by the request to take the holiday period, which the employer must grant even during the employee’s illness, implies, in the event that the abovesaid request – submitted within the maximum period of the total job retention period, in the case of intermittent illness – is not granted, that the expiry of the job retention period itself moves to the expiry of the employee’s accrued and untaken holiday days; for this purpose, the temporal coincidence of the single episode of illness with the request to take leave is not relevant, and the operation of the principle cannot be considered to be limited to the days of absence immediately following each request and for the period corresponding to the duration of the leave accrued at that time”. (Italian Court of Cassation, Employment Division, 6 June 1991, no. 6431; Italian Court of Cassation, Employment Division, 30 March 1990, no. 2608; Italian Court of Cassation, Employment Division, 11 March 1995, no. 2847; Italian Court of Cassation, Employment Division, 15 December 1994, no. 10761).
Consequently, the job retention period could also be interrupted as a result of the employee’s request to use the holiday period, with the employer being obliged to accede to that request even during illness.
The application of this criterion aroused enormous perplexity on the part of interpreters, who pointed out its incompatibility with the framing of the leave system outlined by the Italian Constitutional Court itself in 1987, as an instrument aimed at the reinstatement of the worker’s psycho-physical energy consumed during the work period, a recovery, evidently, irreconcilable with the state of illness.
Hence, therefore, an inevitable shift in case law aimed at setting the limits and conditions of access to the benefit of conversion [of the job retention period to leave], through a balancing act between the employee’s need for job retention and the employer’s interest in job performance.
According to what now appears to be a well-established guidance, a worker absent on sick leave and unable to return to work does not have the unconditional right to substitute accrued leave for sick leave as a reason for his or her absence, in order to block the running of the job retention period; on the contrary, it is the employer, adhering, in determining the holiday leave, to the guidelines requiring the reconciliation of business needs with the needs of the employee, who must take into serious consideration the employee’s request and his or her interest in avoiding losing his or her job through the expiry of the job retention period.
On this point, it should also be noted that the employer’s obligation to consider granting leave to an employee during a period of illness only arises if there is a specific request to take it.
It must be the employee, absent due to illness and unable to work, and wishing to avoid the loss of his or her job due to the expiry of the job retention period, who must submit the appropriate application, to allow the employer to assess the applicant’s fundamental interest in keeping his or her job (Italian Civil Court of Cassation, Employment Division, 27 February 2003, no. 3028).
As repeatedly affirmed by the Italian Court of Cassation, the specific interests of individual workers can be taken into account by the employer in determining the period of holiday entitlement only if they are brought to the employer’s attention. The potential conflict between holiday entitlement and illness therefore requires that the sick employee’s holiday entitlement can only be considered if he or she has submitted a specific request to that effect, from which his or her overriding interest in preventing the end of the job retention period is apparent.
The matter originated from the dismissal of a worker for exceeding the job retention period. The worker challenged the dismissal by providing evidence that she had asked the employer, with a communication sent and received by the company before the job retention period for the position had expired, to use accrued and untaken holidays.
Continue reading the full version published on Modulo 24 Contenzioso Lavoro of Il Sole 24 Ore.
By order No 11136 of 27 April 2023, the Italian Court of Cassation ruled on the subject of dismissal for exceeding the job retention period. The Court held that absences due to injury caused to the employee by things in the employer’s custody must be included in the protected period, if the employer is able to prove that accident prevention precautions were taken and the unforeseeable and unavoidable nature of the harmful event.
The facts of the case and the decision on the merits
The employee was employed under a local authority catering sub-contract and challenged her dismissal for exceeding the protected period. In support of the application, the employee submitted that, in calculating the absences taken into account for the purpose of the protection period, those resulting from the accident which occurred due to the explosion of a thermal display cabinet owned by the principal should not have been included.
The Court of Appeal of Venice rejected the appeal brought by the employee, confirming that, in the present case, the days of absence resulting from the accident had to be taken into account, since the absolute unforeseeability of the event had emerged during the proceedings. In addition, the lower court found that the contracting authority had delivered the equipment in good condition at the time of the contract and that it complied with the legislation.
The judgment of the Italian Supreme Court
The employee appealed to the Italian Court of Cassation against the decision of the Court of Appeal of Venice.
With particular reference to the issue of absences taken into consideration for the purpose of calculating the protection period, the Italian Court of Cassation, on the basis of its precedents, confirmed that the employee absences due to an accident at work or occupational disease are attributable, in principle, to the broad and general concept of accident or illness set out in Article 2110 of the Italian Civil Code. They are, therefore, normally included in the protection period.
In fact, for the absence not to be included in the protection period, the employer must be liable for the disease and its origin under Article 2087 of the Italian Civil Code.
Liability under Article 2087 of the Italian Civil Code, the Court pointed out, does not in fact represent strict liability, since it must be linked to the breach of obligations of conduct imposed by legal norms or suggested by experimental or technical knowledge of the time. In that context, therefore, the burden of proof lies with the employee who complains that he or she has suffered damage to health as a result of his or her work, to prove that damage, as well as the harmfulness of the working environment, and the link between them. Only if the employee has provided proof of these facts does the employer bear the burden of proving that accident prevention precautions have been taken and/or the unforeseeable and unavoidable nature of the harmful event.
Applying the aforementioned principles, the Italian Court of Cassation dismissed the appeal as the trial court had found that, in the present case, the wine cellar explosion was an unforeseeable event in view of the required standard of care and applicable safety precautions.
Therefore, the dismissal was held to be lawful, given the inclusion of the absences due to injury in the calculation of the protection period.
Other related insights:
Legitimate dismissal of an invalid worker for exceeding the protected period
In ruling no. 8628 of 16 March 2022, The Court of Cassation ruled that the validity of dismissal for exceeding the protected period “‘by summation” requires specification of the days of absence due to illness, to which unjustified absences cannot be counted.
An employee of the Udine Prefecture had challenged her dismissal for exceeding the protected period, arguing that the dismissal notice did not correctly specify the days counted and added together.
The Court of First Instance upheld the employee’s appeal, declared the dismissal unlawful and ordered the Ministry to reinstate her.
The Ministry then appealed against the ruling before the Court of Appeal of Trieste, which confirmed the first instance ruling, upholding the principle that if the employer specifies the employee’s days of absence in the termination notice, it cannot subsequently change or add them.
In this case, the period specified by the Ministry of Health for absence due to illness was 472 days (taking into account the “protected period by summation”) and was less than the protected period under collective bargaining and set for 484 days. This is because the period specified by the Ministry included 12 days of employee unjustified absence and, therefore, was not included in the protected period calculation.
In addition, the Court of Appeal found that the Ministry’s evidence that the days of unjustified absence were attributable to the employee’s illness was worthless. According to the Court of Appeal, what mattered was the “incontrovertibility” of the periods specified in the dismissal notice, based on the principle that the reasons for dismissal cannot be changed.
The unsuccessful Ministry thus appealed the Court of Appeal’s ruling in cassation.
The Court of Cassation confirmed the decisions of the courts. The Court of Cassation upheld the local court’s finding that the 12 days of unjustified absence were not taken into account for a protected period exceeding purposes, as they related to a different case.
The Court of Cassation observed that, contrary to the Ministry’s claim, the Court of Appeal did not intend to affirm that in cases where the protected period was exceeded the employer must specify the individual days of illness considered for the calculation of the protected period in the letter of dismissal. This precluded a subsequent specification by the employer.
The Court of Cassation stated that the employer cannot ex post add to or change the days taken into account to exceed the protected period allowed by collective bargaining, if it specifies the absences taken into consideration.
According to the Court, for cases of dismissal for exceeding the protected period, “the employer does not have to specify the individual days of absence since more comprehensive information is sufficient. This is based on the amended Article 2 of Law no. 604/1966, which requires the simultaneous communication of the reasons, without prejudice to the burden of alleging and proving in court the facts constituting the power exercised. However, this applies to the protected “single period” (i.e. a single uninterrupted period of illness), where the days of absence are easily calculable even by the worker. In cases of protected period “by summation” (i.e.multiple and fragmented absences), a specification of the calculated absences is required to enable the worker to defend themselves.” In the Court of Cassation’s opinion, even when there was a dismissal for exceeding the protected period “by summation” the rule of unchangeability of the reasons underlying the termination applies. This rule constitutes a guarantee for the worker who, otherwise, would not have the opportunity to challenge the dismissal.
Other related insights:
The Court of Asti, with the order of 5 January 2022, ruled that the quarantine period (as per art. 26, paragraph 1, Decree Law 18/2020 applicable ratione temporis) or voluntary homestay is not valid for calculating the protection period, not only vis-a-vis subjects who have had close contact with confirmed cases, but also regarding subjects who end up positive for Covid-19. This is because it is impossible by law to perform the job regardless of the presence of symptoms or not linked to the pathology.
In the case in question, the worker, following contact with a colleague turned out to be positive to Covid-19, she was first put in quarantine and later, following a positive swab result, in voluntary homestay. The employer dismissed her for exceeding the protected period according to the sector national collective bargaining agreement.
The worker challenged the dismissal in court, claiming that:
In contrast with what the employee sustained, the employer sustained that the protection included in art. 26, paragraph 1, of Degree Law no. 18/2020 only refers to the quarantine periods with active monitoring or voluntary homestay with active monitoring ordered by the authority and not also the case in which the worker had caught the Covid-19 infection.
According to the Judge assigned to the case, during the protected period the days of absence due to quarantine or voluntary homestay provided by the law to fight the spread of the virus should have not have been calculated.
The Judge – in citing art. 26, paragraph 1, of Decree Law no. 18/2020 as amended by subsequent legislative interventions that extended the timeframe – underlined how such provision was introduced with the aim of protecting workers forced to be absent from work because subject to quarantine or voluntary homestay measures equating such absence to illness and excluding it from the calculation for the protected period.
In light of the above, according to the Court, in the case in hand, the days of absence required for quarantine and those ordered for homestay due to testing such worker for the virus should not have been calculated for the purpose of exceeding the protected period.
The sentence reads that “the ratio of the law is not to have the worker suffer the consequences for absences from work due to prevention and containment measures provided by law and undertaken with measure of the authorities to limit the spread of the Covid-19 virus, in all cases of possible or clear infection from the virus and regardless of the condition of the illness that – as already known – may exist with or without the infection (asymptomatic positive cases)” It later states “even in the case of infection with illness, what really separates Covid-19 from other illnesses is the impossibility, authoritatively imposed, for the worker to perform their job and for the employer to receive it in legally and administratively expected times, times that – once again – are regardless of the development of the illness but depend on the mere positiveness or negativeness of the virus”.
Based on these considerations the Court granted the worker’s appeal, cancelling the dismissal and (i) reinstatement in her job as well as (ii) payment of damages equal to the last overall remuneration from the day of dismissal until that of effective reinstatement, and in any case not greater than 12 months salary of overall remuneration, as well as interest and revaluation as per law as well as payment of welfare and social security contributions.
Other related insights:
The Court of Cassation, with order No. 18960 of 11 September 2020, has stated that in no way may the dismissal following the protected period be deemed belated when the employer, prior to notifying same, waits for an adequate period of time in order to carry out a “prognosis of endurableness” of the overall absence compared to the undertaking’s interest remaining. According to the Court of Cassation, the requirement of the timeliness of the withdrawal following the protected period cannot turn into a fixed and predetermined chronological fact, since it must undergo an adequacy assessment to be made in practice with respect to the entire de facto context. Therefore, even a considerable lapse of time between actually exceeding the protected period and the moment in which the employer decides to notify the dismissal must be deemed to be in line with the legal system’s provisions. The above provided that the employer uses this interim interval to carry out a check as to whether the sick leave is compatible with the service requested to the employee. Instead, still in the opinion of the Court of Cassation, the worker concerned must prove that the time interval between actually exceeding the protected period and the service of the withdrawal has exceeded the limits of adequacy and reasonableness such as to lead to understand that there is an implied intention on the employer’s side to waive the respective own right to withdraw from the employment contract in force.
