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Disability
Discriminatory Dismissal and Disability: The Worker’s Silence Does Not Reduce Compensation
Court of Cassation, Labour Division
A worker challenged her dismissal, communicated on grounds of exceeding the sick leave entitlement period, arguing that it was discriminatory on account of her disability. The lower courts confirmed the nullity of the dismissal; however, the Court of Appeal reduced the compensation award to the minimum level, placing weight on the fact that the worker had not disclosed her health condition to the employer. The Supreme Court, called upon to rule on the matter, reaffirmed that applying the standard sick leave entitlement rules to a disabled worker may constitute indirect discrimination where possible organisational adjustments have not previously been assessed. In this context, the burden falls on the employer to act, in good faith and with due diligence, to ascertain whether the absences are connected to the disability and to engage in appropriate dialogue with the worker. On the question of financial consequences, the Court of Cassation clarified that, once the employer’s liability has been established, the worker’s failure to disclose their personal condition cannot reduce the quantum of damages. The minimum compensation threshold is indeed a non-derogable floor, but it does not represent the full extent of the compensation due where the employer’s breach is attributable, in which case a more substantial award must be recognised.