A diverse group of colleagues in a business meeting discussing ideas indoors, one of them is an example of employees with a disability
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Employee with a Disability and Dismissal for Exceeding the Sick Leave Period

ByStudio Associato Pagani

Rigidly applying the sick leave period established by the CCNL to an employee with a disability constitutes indirect discrimination, resulting in the illegitimacy of the dismissal. This was affirmed by the Court of Cassation with judgment no. 24052 of September 6, 2024. The ruling, in line with well-established case law, confirms that the sick leave period cannot be the same for all employees. In fact, given the higher risk of morbidity due to disability, it must differ for employees with disabilities.

To avoid the risk of indirect discrimination against such employees, collective bargaining should provide for extended sick leave periods, taking into account the individual disabling condition, and reasonable accommodations should be adopted.

Employer Obligations Towards Employees with a Disability

According to the Supreme Court:

(…) The employer’s knowledge of the employee’s disability—or the possibility of knowing it with ordinary diligence—creates the obligation, which cannot be countered by obstructive behavior from the employee, to acquire information before proceeding with dismissal about whether the employee’s absences are related to the disability, in order to identify possible reasonable accommodations under Article 3, paragraph 3-bis, of Legislative Decree no. 216 of 2003, whose adoption presupposes dialogue and consultation between the parties, an unavoidable phase of the complex dismissal procedure (…)

Court of Cassation, Judgment no. 24052, 6/09/2024

Legislation on Indirect Discrimination

According to the aforementioned Legislative Decree, implementing Directive 2000/78/EC, indirect discrimination occurs whenever

a provision, criterion, or practice that appears neutral may place individuals with a particular religion or ideology, a specific disability, a certain age, or a particular sexual orientation at a particular disadvantage compared to others.

Legislative Decree no. 216, 2003, Article 3, paragraph 3-bis

In light of the above, pending legislative or collective bargaining intervention regarding sick leave for employees with disabilities, it is crucial for employers to adopt so-called “reasonable accommodations” — for example, unilaterally extending the sick leave period — to minimize the risk of dismissal being challenged in court.