The Naples Court of Appeals: Disabled employees cannot be indirectly discriminated against due to absence for sick leave

Andrea Gangemi
Portolano Cavallo, Rome
agangemi@portolano.it

Tabita Costantino
Portolano Cavallo, Milan
tcostantino@portolano.it

In a recent judgment, Judgment No 168/2023, the Naples Court of Appeals upheld the decision of the lower court, declaring it unlawful to dismiss an employee with a degenerative disease for exceeding the grace period. This important decision supports the legal stance that including the provision for the grace period for employees with less serious illnesses and disabilities in collective bargaining agreements is a form of indirect discrimination under Legislative Decree 216/2003 and EU’s Equality Framework Directive 2000/78/EC.

The protected period

The ‘protected period’ or ‘grace period’ (periodo di comporto in Italian) is a timeframe, generally established by relevant collective bargaining agreements, applied by the employer, during which an employee is entitled to retain employment when absent due to illness.

Once this period has passed, the employee can be legally dismissed ‘for exceeding the grace period’, according to the second paragraph of Article 2110 of the Italian Civil Code.

The first instance Court’s decision

An employee suffering from the degenerative disease multiple sclerosis objected to being dismissed for exceeding the grace period on the grounds that it violated the provisions of Article 1 of the Legislative Decree 216/2003, implementing the EU’s Equality Framework Directive 2000/78/EC and, therefore, that the employer’s action constituted indirect discrimination.

In the first instance, the Court of North Naples sided with the employee and declared the dismissal null and void. The Court ordered the defendant company to reinstate the employee and to pay compensation equal to the last de facto global salary.

The employer’s arguments

The company filed an appeal on the basis of a variety of arguments that it believed the Court of first instance had overlooked.

The company claimed lack of cooperation from the employee, who had not declared that he was disabled under the definition of Law 104/92 (a law establishing certain rights for people with disabilities) or that he had an irreversible illness.

Furthermore, the employer argued that once the grace period had been exceeded, the Italian National Institute for Social Security (the ‘INPS’) ceased to pay the sick leave allowance that it was required to provide. This factor is considered relevant by the employer company because Legislative Decree 216/2003 states that the arrangements provided therein must not ‘impose excessive burdens’ on the employer.

Finally, the employer asserted that the company had merely applied a contractual rule and that the employee had not tried to prevent the dismissal by exercising the right to request unpaid leave of absence at the end of the grace period, although this possibility is provided in the national collective bargaining agreement.

The decision of the Naples Court of Appeals

The Court rejected the employer’s appeal on the basis of a number of arguments.

First, the Court analysed Article 5 of EU Directive 2000/78/EC and Article 3 paragraph 3-bis of Legislative Decree 216/2003 and concluded that an employer must make ‘reasonable accommodations’ to avoid indirect discrimination against disabled employees.

The Court then analysed the precedents set by the Court of Justice of the European Union (CJEU) and concluded that indiscriminately applying the rule allowing dismissal for exceeding the grace period to employees with temporary illnesses and those with irreversible illnesses constitutes indirect discrimination. Indirect discrimination occurs when an apparently neutral provision (in this case, the clause in the collective agreement concerning the grace period) puts a ‘weak’ party (in this case, a disabled person) at a disadvantage compared to other employees who do not have similar issues.

The Court pointed out that the collective bargaining applicable in the case at stake has also evolved in this direction, since it excludes several types of absences from the calculation of the grace period. Excluded absences include those due to the employee’s need to undergo life-saving treatment for multiple sclerosis.

In addition, according to the Court, contrary to the employer company’s reasoning, excluding the days the employee needed for treatment related to his degenerative disease from the grace period is not excessively burdensome for the employer. Indeed, the INPS covers the majority of the employer’s expenses by paying an allowance for a certain period. After that, the employee is entitled only to job preservation and not to sick leave pay.

Contrary to the employer’s arguments, it is not relevant to the Court whether the employer could have known or knew about the employee’s state of disability (although, it was very unlikely in this case that the employer did not know the employee’s status).

In addition, the employer did not do anything to avoid indirect discrimination (eg, not considering absences linked to the disability in calculating the grace period, providing a reduced work schedule, informing the employee that the grace period was coming to an end, informing the employee of the possibility to use unpaid leave or unused holiday days).

The Court concluded that the parties to the collective agreement engaged in indirect discrimination by not providing a separate grace period for disabled workers as opposed to workers with less serious issues. This indirect discrimination rendered the employee’s dismissal unlawful.

Conclusion

Although this decision supports the perspective that having collective bargaining agreements provide the same grace period for employees with disabilities and those with less serious illnesses constitutes indirect discrimination, an alternative viewpoint, backed by courts in Bologna, Lodi and Vicenza, contends that there is no justification for granting disabled workers and those with less serious illnesses different grace periods. One of the arguments in favour of this viewpoint is the existence of numerous safeguards that already support disabled people’s employment relationships.

In conclusion, given the many conflicting rulings, it is now up to collective bargaining agreements to decide whether to introduce different grace periods for disabled workers, as opposed to employees with less serious illnesses.

In the absence of changes to collective bargaining agreements, it remains for the Supreme Court to intervene to settle this legal conflict and strike the proper balance between the rights of disabled workers and the needs of employers.