The Supreme Court's decision no. 170/2025 recognises the indirect discrimination in applying a uniform protected period to disabled and non-disabled workers. With decision no. 170 of January 7th, 2025, the Italian Supreme Court reiterated that applying a uniform grace period to all employees, without considering the specific condition of disabled workers, constitutes indirect discrimination against the latter. In the case at hand, a disabled worker dismissed for exceeding the protected period challenged the decision of the Court of Appeal of Turin, which, reforming the first-instance ruling, acknowledged the worker’s correct classification as a “person with disabilities” under Articles 1 et seq. of Legislative Decree No. 216 of 2003 and, on the other hand, diverged from the conclusions of the lower court, which had recognised the indirectly discriminatory nature of applying the same protected period to both disabled and non-disabled workers. The Supreme Court, relying on established case law, held that imposing an identical protected period on both categories of workers constitutes indirect discrimination under EU law. Establishing a uniform protected period for all employees constitutes an ostensibly neutral criterion that becomes indirectly discriminatory when the employer fails to adequately consider the higher risk of morbidity among disabled workers—a category that, for this very reason, finds itself in a position of particular disadvantage. The Supreme Court clarified that an employer who is aware of an employee's disability (or who could reasonably ascertain such a condition through the exercise of ordinary diligence) bears the burden of verifying, before dismissing the employee for exceeding the protected period, whether the absences are linked to the state of disability. In this regard, the Court reaffirmed the necessity for collective agreements to expressly regulate the matter of time off for disabled workers, taking into account the employee’s specific condition. The Supreme Court upheld the employee's appeal and annulled the judgment of the Court of Appeal of Turin. In the case examined, based on the factual assessment conducted by the territorial Court of Turin, the employer was aware of the employee's disability and proceeded with dismissal for exceeding the protected period without obtaining information on the correlation between the employee's absences due to illness and his disability. Such information would have been essential to identify possible accommodations to prevent employment termination.
2025 - Morri Rossetti
