In its judgment of June 6, 2024, no. 15845, the Court of Cassation stated that the provision of the national collective labor agreement, which excludes from the maximum period of job retention ‘absences due to hospitalization, including day hospital,’ must be interpreted as excluding from the grace period ‘all the time the worker is hospitalized in a healthcare facility, even if only for a day or part of it, to undergo investigations, treatments, and assistance that cannot be performed at home.’
The Court of Cassation, in line with the Court of Appeals and in light of the provisions of the applicable collective labor agreement, ruled that ‘absences due to hospitalization, and thus not counted towards the grace period, should also include those caused by emergency room visits.’ According to the Court, ‘the expression used in the collective agreement implies a broad notion of hospitalization, including both proper hospital admissions lasting at least twenty-four hours and day-long admissions. Indeed, it is not logically plausible that the exclusion from the grace period calculation would apply only to day hospital visits and not to other fully comparable situations.’ Therefore, it is clear that the social partners intended to exclude from the grace period ‘all the time the worker is engaged in a healthcare facility […]’, including days spent in the emergency room.
With the judgment of June 7, 2024, no. 15957, the Court of Cassation stated that the presence of a stressful work environment is an unjust situation that, even in the absence of employer behavior amounting to mobbing, entitles the employee to compensation for health damages.
In the case at hand, the employee sought legal action to obtain compensation for the employer’s harassment she had suffered, consisting of ‘hostile discriminatory and persecutory behaviors, which resulted in her moral degradation and marginalization in the workplace, causing harm to her psychological and physical well-being and personality.’ Preliminarily, the Court of Cassation reiterated the definitions of mobbing and straining. In particular, according to an already established jurisprudential orientation, ‘the notion of mobbing, like that of straining, is a medico-legal concept that does not have independent legal relevance but serves only to identify behaviors that conflict with Article 2087 of the Civil Code and the legislation concerning health protection in the workplace.’
‘Workplace mobbing can be established when the objective element is present, consisting of a continuous series of harmful behaviors towards the person within the employment relationship, and the subjective element of persecutory intent towards the victim, regardless of the inherent legitimacy of each behavior, as the intentional nature of the behavior renders even otherwise abstractly legitimate actions illegal, all within a legal framework fully fitting into civil law, where the employer’s intentional infliction of harm on the worker is in itself a violation of Article 2087 of the Civil Code and therefore constitutes contractual liability, even with the greater effects provided for in Article 1225 of the Civil Code in cases of intent.’ However, ‘straining can be configured when stress-inducing behaviors are knowingly directed at an employee, even if there is no multiplicity of harassing actions.’ The Supreme Court also noted that, regarding workers’ health protection, ‘a stressful work environment can be considered an unjust situation, subject to review along with all other alleged employer behaviors as harassing, even if they appear to be lawful or merely episodic, as the protection of the fundamental right of the worker is directly grounded in the constitutionally oriented interpretation of Article 2087 of the Civil Code.’ On this basis, the Judges of legitimacy upheld the employee’s appeal, recognizing her right to the requested compensation for damages.
With ordinance no. 15391 dated June 3, 2024, the Court of Cassation affirmed, in line with established jurisprudence, that data acquired through the operation of a telepass device installed on a company car cannot be used for disciplinary purposes if the worker has not previously been provided with specific information regarding the use of the device in accordance with Article 4 of Law no. 300/1970.
As is well known, the aforementioned provision establishes that the employer may use tools that allow remote monitoring of workers’ activities, provided that: i) specific organizational, productive, workplace safety, or company asset protection needs exist, ii) a union agreement is signed, or, in its absence, authorization is requested from the territorially competent Labor Inspectorate, and iii) workers are adequately informed about the methods of use of remote monitoring tools—such as the telepass in this case—and the execution of monitoring activities.
In the case at hand, the worker judicially contested the dismissal imposed on him for certain missed assignments that the employer became aware of through highway toll data provided by the telepass system installed on the company car. The Court of Appeal upheld the worker’s claim, asserting that—without proper notification—the employer could not obtain the data through the telepass and, therefore, such data could not hold any disciplinary relevance. The Court of Cassation preliminarily noted that ‘the telepass device installed by the employer on the car, which is also made available to the worker for performing his duties as a traveling technician, allows the recording of related data at the moment of highway transits (entry and exit), and once provided to the employer by the telepass system operator, it enables a remote, albeit retrospective, monitoring of the worker’s activities.’
The information thus collected ‘can only be used for any purposes related to the employment relationship if the worker is properly informed about the methods of use of the monitoring tools, in compliance with the provisions of the aforementioned Article 4 of Law no. 300/1970.’
With ruling no. 13934 dated May 20, 2024, the Court of Cassation recognized the discriminatory nature of the dismissal imposed on a worker who was a caregiver, due to their refusal to transfer to a location excessively distant from the residence of the person receiving care. The court emphasized that equality in employment and working conditions legislation does not only apply to workers with disabilities, but also extends to workers who care for family members with disabilities.
In this case, the caregiver, entitled to the rights provided under Law no. 104/1992, legally contested the dismissal, which was justified on the grounds of an objective reason following their refusal to transfer to a work location far from both their original place of work and the residence of the assisted spouse. The Supreme Court found that failing to consider the personal situation of the caregiver and treating them unfavorably compared to other workers in comparable situations, in the context of a corporate reorganization aimed at greater economic and financial efficiency, constitutes direct discrimination. Specifically, the Court of Cassation stated, “it must be highlighted that the EU Court of Justice has long held that Council Directive 2000/78/EC of November 27, 2000, establishing a general framework for equal treatment in employment and working conditions, and in particular its Articles 1 and 2(1) and (2)(a), must be interpreted to mean that the prohibition of direct discrimination is not limited to individuals who are themselves disabled.”
As a result, when an employer treats a worker who is not disabled less favorably than another worker in a similar situation, and it is proven that the unfavorable treatment stems from the disability of the person receiving care, to whom the worker provides essential care, such treatment violates the prohibition on direct discrimination as set out in Article 2(2)(a) of the directive (Court of Justice of the European Union, Grand Chamber, July 17, 2008, no. 303).
In these circumstances, “it is up to the worker to demonstrate the risk factor (i.e., the serious disability of the family member) and the less favorable treatment compared to others in similar conditions, establishing a significant correlation between these elements.” Since the worker met this burden of proof, and also demonstrated “the existence of other locations closer to the residence of the assisted person than those offered by the company for the transfer,” they were granted the right to be reinstated in their position.
We remain available for any further discussions or clarifications that may be necessary.