Italy Update: The application of the ordinary period of conduct to the disabled worker represents indirect discrimination

Court of Cassation, sec. lav., 31 March 2023, n. 9095 

The application of the ordinary period of conduct to the disabled worker represents indirect discrimination. This is because, compared to a non-disabled worker, the disabled worker is exposed to the additional risk of absences due to an illness linked to his disability, and therefore subject to a greater risk of accumulating days of sick leave and reaching the maximum limits laid down in the relevant legislation.

This does not mean that a maximum limit in terms of days of absence due to illness of the disabled worker cannot or should not be set by the legislator or, as far as it is competent, by the social partners, also in order to combat phenomena of absenteeism due to excessive morbidity.

Such a legitimate aim must, however, be achieved by appropriate and necessary, and therefore proportionate, means, while failure to take account of the risks of increased morbidity of disabled workers, precisely as a result of disability, transmutes the apparently neutral criterion of calculating the short period of behaviour into a discriminatory practice against the particular protected social group because it is at a particular disadvantage.

So that the necessary consideration of the protected interest of disabled workers, in balance with legitimate employment policy purposes, postulates, the application of the principle of identifying reasonable solutions to ensure the principle of equal treatment of disabled people, guaranteed by art. 5 of Directive 2000/78/EC (i.e. reasonable accommodation under the UN Convention on the Rights of Persons with Disabilities, in the light of which the EU anti-discrimination regulatory directives must be interpreted).

By Quorum, Italy, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact italy@transatlanticlaw.com

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