Dismissal due to illness and disability discrimination between case law and collective bargaining

Abstract

The contribution examines the tension between the discipline of the periodo di comporto (the job-retention period during illness) under Article 2110 of the Italian Civil Code and the prohibition of indirect disability discrimination introduced by EU Directive 2000/78/EC. Following the landmark judgment no. 9095/2023 of the Italian Supreme Court, which ruled that applying an identical job-retention period to both disabled and non-disabled workers constitutes indirect discrimination, the Author analyses the subsequent evolution of both case law and collective bargaining. The Author concludes that while collective bargaining and judicial balancing are valuable, an organic legislative intervention is urgently required to achieve a sustainable equilibrium between the protection of vulnerable workers and the operational certainty of employers, suggesting intermediate cooperative solutions such as the strategic use of digital sick leave certificates.