Maternity leave and performance bonus: exclusion is discriminatory

Equal Opportunities and Discrimination
Maternity Leave and Performance Bonus: Exclusion Is Unlawful and Discriminatory
Taranto Tribunal

A worker brought proceedings claiming that she had been excluded from the annual productivity bonus on the grounds that she had been absent for the entire relevant period, having taken compulsory maternity leave. The employer had considered it impossible to carry out an individual performance assessment in the absence of any work performed.
The Tribunal upheld the claim, characterising the conduct as direct gender discrimination. The exclusion from the bonus was found to be based solely on the exercise of a right connected to maternity, resulting in economic harm to the worker.
According to the judge, absence on compulsory leave cannot give rise to negative consequences either in terms of pay or professional standing. The employer is required to adopt alternative and neutral assessment criteria capable of reconstructing, on a notional basis, the performance not rendered. Among such criteria, recourse to the average of assessments achieved in previous years is considered lawful.
In the absence of such corrective measures, the company effectively transfers the cost of maternity onto the worker, contrary to the principles of equal treatment. The employer is consequently required to pay the bonus, reconstructed on the basis of historical performance, together with the statutory ancillary amounts.