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Italian court clarifies criterion for calculating maximum length of sick leave
30/08/2021
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Pharmacy
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Sharon Reilly
Sharon Reilly is a dual-qualified lawyer, co-founder, and managing partner of Reilly & Tesoro, Employment Law Firm

We recently won a case in the Rome courts for Alaro, a leading company in the wholesale and retail trade of well-known footwear brand Camper, that had dismissed a shop assistant for exceeding the maximum period of sick leave – the so-called periodo di comporto or grace period. 

The dispute is of significance to employers in Italy as it raised a question of whether to count only working days or also non-working days falling in-between a continuous period of illness, as well as the fact that the dismissal took place during the global covid-19 pandemic while a blanket ban on dismissals for economic reasons remains in place.

Italian employment law (Art. 2110 Civil Code) provides that, in the case of sickness, an employee is entitled to keep his or her job for a certain period (periodo di comporto) in terms of the National Collective Bargaining Agreement (NCBA) applicable to the employment relationship.

During this time, the employee is “protected” due to illness. That is to say, they cannot be sacked except for just cause (ie, serious misconduct) or closure of the company.

However, this protection does have its limits. On the expiry of the grace period – whether it has been used up with one single ongoing illness or several different illnesses over a period – and where the employee fails to return to work, the employer is at liberty to fire the worker, on payment of the indemnity in lieu of notice. And this is exactly what happened here.

The legitimacy of such a dismissal hinges, of course, on whether the employee exceeded the grace period and so it is all about getting the maths right. If the calculation is correct, the dismissal is lawful; if the calculation is wrong, the dismissal is deemed unlawful. If the latter were to happen, the employee’s remedy is reinstatement plus damages, as Camper has more than 15 employees in Italy.

The peculiarity of the case concerned the parameters for calculating the maximum period of grace, specifically, the days to be computed for a vertical part-time employee who worked three days a week, Thursday to Saturday.

The nub of the matter was whether to count only working days or also the non-working days falling in-between a continuous period of illness. The Court of Rome, with an order of 18 July 2021, accepted our argument, agreeing that all the days falling within the period of absence, both working and non-working days, were to be counted.

Let’s look at the facts of the case in more detail. The employment relationship in question was governed by the NCBA for the tertiary sector and Article 87 provided a protected period due to illness of “half the working days agreed by the parties in a calendar year” for vertical part-time workers.

By virtue of the three working days per week agreed upon, the company calculated the protected period as 78 days, and after such period had expired, it proceeded to fire the employee.

In short, the employee had been absent for over three months in a row, submitting 16 sick notes for the same illness; each individual sick leave began on a Thursday and ended on a Saturday, to coincide exactly with the agreed weekly workdays.

As a result, the company calculates the protected period taking not only the days of sick leave actually appearing on the medical certificates, but also the non-working days falling in-between one period of absence and the next, presuming the continuity of the illness: the same presumption of continuity which is used to calculate the maximum period of sick leave for full-time employees.

In fact, on the basis of consolidated case law, “the period of sick leave also includes non-working days and intermediate absences of the employee between one sick leave and the next, since it must be presumed, unless the employee proves to the contrary, the continuity of the sickness”.

The employee challenged the dismissal in court claiming that the company, for the purposes of calculating the protected period, had to consider only the days of sick leave (Thursday to Saturday) and not the non-working days falling between one sick leave and the next, also considering that those 16 medical certificates had precise dates, therefore it was not a continuous illness.

The judge did not agree with the employee’s line of argument and threw out the case. The judge was at pains to point out that all the sick notes produced were issued for the same illness, so “it is unreasonable to believe that 16 medical certificates can relate to 16 different traumatic events, especially considering that the pathology cited is essentially always the same”.

In addition, the judge referred to the established case law principle of continuity of the illness unless the employee proves otherwise, thus considering that “the company quite rightly included in their calculations non-working days and holidays since the employee has never returned to work in-between one sick note and another and has failed to prove that she suffered from several different illnesses”.

The judge thus upheld the company’s defences and declared the dismissal lawful, affirming our argument that the same principles apply to a vertical part-time employment relationship as to a full-time one, as regards the period of grace: non-working days are counted, and continuity of the illness is assumed.

It is worth a mention that during the proceedings the opposing counsel tried to slip in a new element: violation of the current ban on dismissals for economic reasons. That objection was overruled by the Tribunal of Rome as being out of time and, therefore, inadmissible. In our opinion, even if the objection had been timely, it would have been thrown out anyway, as the ban concerns dismissal for economic reasons, separate and distinct from a dismissal on the grounds of exceeding the maximum period of sick leave.