Sick leave and disability: dismissal not discriminatory without employer awareness

Dismissal for Exceeding the Sick Leave Entitlement Period
Sick Leave Period and Disability: No Discriminatory Dismissal Where the Employer Is Unaware of the Condition
Tribunal of Bologna

A worker challenged the dismissal served on her for exceeding the sick leave entitlement period (periodo di comporto), arguing that the termination was discriminatory in nature. She maintained that a large proportion of her absences were attributable to a long-term condition equivalent to a disability, of which the company had been informed, and further complained that she had not been warned of the imminent exhaustion of the sick leave period.
The Tribunal dismissed the claim. The court recalled that dismissal for exceeding the sick leave period may be discriminatory where the worker’s disability leads to a higher rate of illness and the employer fails to adopt reasonable organisational adjustments. However, for that obligation to arise, the company must have sufficiently certain knowledge of the condition and of its concrete impact on the worker’s capacity to work.
In the case under examination, the communications received by the company were found to be generic and insufficiently supported by documentary evidence. The witness evidence, moreover, did not establish that the employer had been genuinely informed of the worker’s specific condition. The ruling reaffirms that the protection against discrimination presupposes clear awareness of the worker’s health situation on the part of the company. The Tribunal further confirmed that, absent specific contractual provisions, the employer is not obliged to warn the worker of the imminent expiry of the sick leave period.