ITA 
Pubblicato su Sole24Ore – Nt Lavoro – il 27/05/2024
It constitutes indirect discrimination to apply the ordinary illness protected period to the disabled employee, because the failure to take into account the greater risk to get sick of disabled employee converts the apparently neutral criterion of the illness protected period calculation into a discriminatory practice against a particular protected social group.
Court of Cassation, judgment no. 11731 of 2 May 2024.
In the present case, a disabled employee had been dismissed for exceeding the illness protected period. The employee had been absent for 458 days, and the NCBA applied to the employment relationship provided for an illness protected period of 15 months within a 30 months’ time frame.
The Court of Appeal of Florence, confirming the decision of the Court of First Instance, declared the dismissal null and void as discriminatory. In fact, the Court held that the provision of the NCBA was insufficient to protect the risk condition of the disabled employee. This is because it provides for a single and undifferentiated time frame also for periods of illness related to disability and an additional period of unpaid leave, applicable to all employees.
In another respect, the Court of Appeal excluded the lack of the subjective element of the Company, given the full awareness of the employee’s illness and not having verified the traceability of the absence to that illness.
The Company appealed in Cassation, claiming that the global discipline of the NCBA, which provides for additional periods of unpaid leave for employees with a disability of more than 50% never requested by the employee, had been ignored.
Moreover, the Company denied the existence of the subjective element, pointing out that it had only known of the employee’s illness in court. In fact, the employee had always provided medical certificates during his employment with no reference to his particular illness.
First of all, the Court of Cassation recalls the ratio of the “illness protected period” institute. It can be traced back to the balance between the employee’s interest in having a reasonable period of absence to heal after an injury of illness and the employer’s interest in not having to bear the negative consequences of such absences on the company’s organisation for an indefinite period of time.
That being said, the Court recalls its own position according to which the application of the ordinary illness protected period to a disabled employee constitutes indirect discrimination, because the failure to take into account the greater risk to get sick of disabled employees converts the apparently neutral criterion of the illness protected period calculation into a discriminatory practice against a particular protected social group (Cass. 9095/2023).
In ordered to avoid such discrimination and to ensure the effective equal treatment of persons with disabilities, the legislator has required employers to adopt all reasonable organisational arrangements that, without resulting in disproportionate financial burdens, are suitable for guaranteeing a balance between the disabled employee’s interest in maintaining a job that suits his/her health condition and the employer’s interest in guaranteeing a work performance that is useful to the company.
However, the adoption of reasonable accommodation places the obligation on the employee to demonstrate the limitations resulting from his/her physical, mental or psychological impairments, in order for the employer to take action.