News

Expired sick periods: mobbing and unfair dismissal

• 20 September 2013
• Ferrario Provenzali Nicodemi & Partners
• LABOR LAWS AND COURT DECISIONS

The Italian Supreme Court* has rejected an employer’s appeal and determined that the dismissal of its employee because of the expiration of her protected sickness period was unfair. This is because her sickness (in this case, depression) was caused by bullying and/or harassment at work (which in Italy is called ‘mobbing’).

The employee sued the company in order to challenge the legitimacy of her dismissal, following the expiration of her period of job preservation during sickness. The duration of such sickness period is generally established by, and dependent upon, the national collective agreements. The period is generally between 6 and 12 months and is paid in full during the first months (e.g. the first 4 to 6 months) and in part for the remaining months. In certain cases part of the salary is paid by the Italian social security bodies for workers including white-collars and blue-collars in the trade sector and blue-collars in the industrial sector but not to executives. The employee claimed that her sickness (frequent depression, anxiety and panic attacks) was caused by the unlawful demotion and other illicit behaviours of the employer entailing ‘mobbing’.

The employee’s claim was accepted by both the Employment Tribunal and the Court of Appeal, which recognised the liability of the company in “harming the employee’s health”. The employer was ordered to reinstate her and pay her damages for loss of salary and the damage to her health

The Supreme Court confirmed the above decisions and added: “the judges of first instance and of appeal, after having duly examined the matter, have considered that the absences for sickness of the employee were due to the unlawful and discriminatory behaviour of the employer and therefore should not be calculated within the period of job preservation“.

Commentary

The above decision is significant in relation to a dismissal following expiration of the period of job preservation, where the sickness is allegedly caused by the employer’s behaviour. In this respect, it has to be pointed out that “mobbing” requires the following features:

· The existence of a multitude of harassing and illicit behaviours of the employer (or even licit if considered individually), which have been systematically and continuously carried out against the employee;

· The existence of a damage to the health or to the personality of the employee;

· The connection between the behaviour of the employer and the prejudice to the employee’s health; and

· The employer’s clear intention to cause a damage to the employee.

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* Employment Section, through a decision issued on 11 June 2013, No 14643.