Discriminatory dismissal of a disabled employee for exceeding the sick leave period

At a glance

• Individuals with severe and chronic health conditions are protected from dismissal for excessive sickness absence.
• Employers should made reasonable accommodations to facilitate such an individual’s continued employment.
• Employers must verify reasons for absence to protect themselves against a finding of discrimination. 

In its ruling No. 11731 dated 2 May 2024, the Italian Court of Cassation stated that it is discriminatory to dismiss an employee for having exceeded the maximum sick leave duration if the employee suffers from a severe and chronic oncological disease reducing their working capacity. 

Further, with regard to such a disabled employee, the employer is required to consider the risks of greater morbidity and to adopt - without incurring disproportionate financial burdens - any reasonable organisational accommodations that allow the disabled employee to remain in employment in a way that is suitable for their impaired state of physical or mental health. 

Where an employee exceeds the ordinary sick leave period, the employer is also required to verify whether the reasons for absence are related to the employee's (known) disability, in order to prove the absence of alleged discrimination. If the employer fails to do so, the dismissal is null on the basis that the employer will have indirectly discriminated against the employee on the basis of their disability.