Articles
21/03/2023
Employment

Dismissal for exceeding the grace period and disability Case law on disability and indirect discrimination in determining the grace period

A new case law approach is noteworthy, which sees dismissal  of workers with disabilities by reason of exceeding the grace period as a form of indirect discrimination.

Such approach is based on the principles dictated by Directive 2000/78/EC establishing a “general framework for equal treatment in employment and occupation”, transposed in Italy by Legislative Decree 216/2003.

More specifically, under Article 2 of the Directive, there is:

  • direct discrimination “where, based on religion or belief, disability, age or sexual orientation, one person is treated less favourably than another is, has been or would be treated in a comparable situation” (point a);
  • indirect discrimination “where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons”.

Article 5 likewise provides that “[i]n order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.”

Article  3, paragraph 3 bis of Legislative Decree No 216/2003 likewise provides that  employers shall adopt “reasonable accomodationto ensure that people with disabilities have equal treatment with respect to other workers.

That being said, some Italian courts – in application of the principles set out above – have held that, for the purposes of imposing a dismissal, providing for a disabled person the same period of grace as a non-disabled person, openly conflicts with the principle of equal treatment, resulting, as a matter of fact, in a situation of indirect discrimination within the scope of Directive 2000/78/EC. Dismissals for exceeding the grace period were found to be null and void, as being deemed in breach of that principle, regardless of

(i) the employer being or not aware that the worker’s sickness absence relates the condition from which he or she suffers; and

(ii) the collective bargaining agreement lacking a specific  regulation on the grace period applicable to workers with disabilities.

It is worth mentioning, for example, the judgment of the Court of Appeal of Brescia, Labour Division, of 23 June 2022: “…the company’s conduct in applying the provisions of the sector’s collective bargaining agreement on the grace period, without providing for differential treatment for disabled workers, in excluding from the illnesses to be considered for the purposes of the grace period those related to the pathologies causing the disability, amounted to indirect discrimination against the worker, thus causing the dismissal of the worker for exceeding the grace period to be null and void”.

Likewise: “The application to the applicant, who was absent due to sickness attributable to his/her disability status, of the same provision for the counting of sickness absencies for the purposes of the grace period applying to “non-disabled” workers, amounts to indirect discrimination, such as to involve dismissal based on the aforementioned contractual provision being null and void” (decision of the Court of Verona dated 21 March  2021; accordingly, Court of Mantua No. 126 dated 22 September 2021; Court of Appeal of Genoa No. 211 dated  21 July 2021).

 

Conclusions

In light of the new case law mentioned above – which, in any case, poses quite a few doubts in terms of legal certainty -, in order to prevent any dismissals of disabled workers for exceeding the grace period to be found null and void, a good practice might be to provide, by company regulations or trade union agreements, a longer grace period for workers with disabilities, in order to balance the need to safeguard the most fragile individuals with the company’s organisational and productive needs. If the company nevertheless intends to apply the standard grace period under the collective bargaining agreement and, when challenging the dismissal, elements emerge proving that the absences were caused by pathologies associated with the state of disability, one should assess the likely consequences of a legal action (which – as noted above – might result in the imposition of the maximum sanction, i.e. reinstatement and full compensation) and, therefore, any conciliation solutions.

 

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Chiara Zecchetto.

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