Latest developments in Italian case law on flexible working schemes as a ‘reasonable accommodation’ for disability

Cristina Capitanio
Gianni & Origoni, Rome
ccapitanio@gop.it

In the Italian system, remote work (whether in the form of ‘telework’, carried out entirely off company premises, or in the form of ‘hybrid’ work,^[1] carried out partly on and partly off company premises) is, in principle, based on an agreement between the parties.

In Judgment No 605 published on 10 January 2025 (the 605/2025 Judgment), the Italian Court of Cassation confirmed that allowing a worker with disability to work remotely, from home, may qualify as a ‘reasonable accommodation’ under anti-discrimination law and, therefore, may be imposed by the Court on the employer even in the absence of an agreement between the parties.

In the case at hand, the worker had a severe form of disability that had caused a significant reduction in his eyesight. After unsuccessfully requesting to the employer to be assigned to a location closer to his place of residence, the worker had sued the company alleging violation of the reasonable accommodation principles, demanding, among other things (1) to be assigned to a location closer to his place of residence; and (2) to be allowed to work remotely to perform his current duties or other existing duties, in accordance with applicable law.

The trial court dismissed the worker’s petition, but upon appeal, the employee’s requests were granted by the Court of Appeals of Naples and then upheld by the Court of Cassation, which rejected the company’s appeal.

The Court of Appeals of Naples grounded its decision on Article 3 paragraph 3-bis of Legislative Decree 216/2003 (Law 216/2003), under which ‘in order to ensure compliance with the principle of equal treatment of persons with disabilities, public and private employers are required to adopt reasonable accommodations, as defined by the United Nations Convention on the Rights of Persons with Disabilities […] to ensure that persons with disabilities enjoy full equality with other workers’.^[2]

The Court recognised that while, on the one hand, the interest of the worker with a disability not to be discriminated is grounded on Article 3 of the Italian Constitution, the employer’s interest in the exercise of free economic initiative, organising the company according to its own unquestionable choices, also has a constitutional ground (Article 41). The rule on ‘reasonable accommodation’ requires finding a ‘balance’ between these two opposing interests.

Following this approach, the Court of Appeals assessed whether the accommodation requested in the case at hand was indeed ‘reasonable’. To this end, the Court focused also on whether the financial burdens on the company related to the provision of suitable equipment and training for the worker (tools and training deemed necessary to accommodate the worker’s requests) should be considered excessive and, therefore, not reasonable. The Court examined all the circumstances of the case, including that during the Covid pandemic the same worker had already been working remotely. The Court concluded that that worker had the skills to perform remote work, and the company was able to provide him with the appropriate equipment. Therefore, the worker’s claims were granted.

The employer appealed the judgment of the Court of Appeals, and the case was reviewed by the Court of Cassation. The latter, in upholding the appellate judgment, recalled that:

• in anti-discrimination judgments, the plaintiff’s burden of proof is eased, that is the plaintiff has the burden of providing the circumstances from which discrimination is alleged, while the defendant has the burden of proving that there is no discrimination; and
• although, according to Italian law, in principle, remote work requires an agreement between employer and employee (while no agreement was in place in the case under review), nevertheless a measure of reasonable accommodation may well be ordered by the judge, in the absence of an agreement.

Judgment 605/2025 broadened the scope of remote work to workers with a disability. And in fact, while Italian law provides that employers using remote work schemes are required to give ‘priority’ to hybrid work requests coming from workers with severe disabilities,^[3] according to Judgment 605/2025, if the request for remote work qualifies as a ‘reasonable accommodation’ under the circumstances, the employer is obliged to grant it and, if it fails to accomplish the worker’s request, the remote work arrangement may be imposed by the judge.

This decision is in line with a well-established trend in Italian jurisprudence to use reasonable accommodations, pursuant to Article 3 paragraph 3-bis of Law 216/2003, to assess the lawfulness of employers’ measures, especially in relation to termination.

For example, in the event that, during the course of employment, the employee becomes physically ‘unfit’ for work, and the employer intends to proceed with the dismissal, the employer has the burden of proving not only the impossibility of assigning the employee to other duties, but also the impossibility of implementing reasonable accommodations that would enable the employee – who has become ‘unfit’ for a certain job – to continue to be employed and perform other activities compatible with his or her psycho-physical condition.^[4]

As a further example, in relation to the dismissal due to illness – which, according to Italian law, can be implemented when the absence due to illness exceeds the ‘protected period’ established by the applicable collective agreement^[5] – the Court of Cassation ruled^[6] that applying to workers with a disability the same protected period applicable to the generality of workers, including non-disabled workers, qualifies as indirect discrimination since the protected period provided by the collective agreement for the generality of workers does not take into account the risk of higher absence from work due to illness that can be incurred by workers with a disability. In the same ruling the Court of Cassation also held that the employer, before dismissing a worker with a disability for exceeding the protected period, must collect information about the link between the absences due to illness and the worker’s disability in order to identify possible reasonable accommodations, pursuant to Article 3 paragraph 3-bis of Law 216/2003, that could be adopted to avoid the dismissal.

As a final comment arising from Judgment 605/2025, it is worth pointing out that the Court of Cassation made explicit reference (despite it was not applicable to the case under review) to the recent Italian law on disability (Law No 62 of 3 May 2024, still under progressive implementation) which introduced, under Article 17, a procedure that allows the person with a disability to request formally the adoption of a reasonable accommodation, including by submitting a proposal. The refusal to grant reasonable accommodation can be appealed both before the judge and before the special National Authority for the rights of persons with disabilities.

Therefore, in addition to the above-mentioned well-established trend in Italian jurisprudence, Italian legislation has further reinforced the concept of reasonable accommodation and its binding nature, the refusal of which qualifies as discrimination.

Employers must pay particular attention to this legal framework to ensure compliance with law and mitigate the risk of disputes and potential liabilities, as well as to protect against adverse impacts on reputation.