ITA 
Pubblished on Sole24Ore - NT Lavoro - on 11/04/2023
The application of the ordinary illness protected period to a disabled employee is an indirect discrimination, because disabled employee is exposed to the additional risk of absence due to an illness related to his condition. Thus, the Court of Cassation with the judgement no. 9095/2023 of 31 March.
The case originates from the dismissal of a disabled employee for exceeding the “short” illness protected period provided for by the NCBA Federambiente applied to the employment, equal to 375 days in the last 3 years, extended to 545 days in the case of a single continuous morbid event (the so-called «extended» illness protected period). For the Court of Milan, the dismissal was a direct discrimination related to the particular condition of the dismissed employee, since it had to be presumed that those absence were attributable to the employee’s disability <>.
The Court of Appeal confirmed the Court of first Instance’s judgement, recognizing, however, an indirect discrimination consisted in the fact that the employer had applied, even in the presence of a serious pathological picture, of the NCBA’s provisions on the illness protected period without distinguishing le absence due to normally illness to those justified by the employee’s disability-related pathologies, contrasting the principles expressed by the CGUE in its judgement no C-270/16 of 18 June 2018. According to the Court of Appeal, the NCBA’s provision, since it is equally applicable both to disabled and non-disabled employees who have been absent from work, also if it’s purposed to a legitimate balancing of the employment relationship parties’ interests, goes beyond what is necessary to realize that purpose, disregarding the disabled’s condition and considering, in the calculation of the illness protected period, also the absences day due to the employee’s disability-related pathology.
The company appealed in Cassation, considered that the agreed provision, as a whole interpreted according to the canons of contractual hermeneutics, does not contain any discriminatory provision, and it’s respectful of the disabled’s treatment referring to his dismissal’s conditions. The Supreme Court, addressed of the matter, confirmed the existence of an indirect discrimination, but based on a different motivation.
In particular, recalling EU case law on protection against discrimination on the ground of disability, the Court observed that a disabled employee is exposed to the additional risk of illness linked to his disability, with the consequence that a rule providing for negative consequences linked to the duration of the absence due to illness is likely to disadvantage disabled employees more and, then, to determinate an unequal treatment indirectly based on the handicap pursuant to Article no. 2, paragraph 2, letter b) of the Directive no 2000/78.
Therefore, due to the Court of Cassation, a disposition that sets identical maximum duration limits for sick leave for disabled and non-disabled employees actually disadvantages the former and thus leads to unequal treatment based on disability. It follows that the application of the “short” illness protected period to disabled workers constitutes indirectly discriminatory and, therefore, prohibited employed conduct. That being said, the Court continues, it is not unlawful to set an upper limit in terms of days of sick leave for disabled workers. If aimed at combating absenteeism due to excessive morbidity, in fact, such a choice discretionary choice by the legislature or the social parties would be a legitimate aim, which must, however, be pursued by appropriate and necessary, hence proportionate, means that consider the additional risk of disabled worker being absent from work due to illness.