
Should the sick leave of a disabled worker be excluded from the period of employment?
The case-law on the possibility of excluding sick leave for disabled workers from the calculation of the composition continues.
After some judgments that had considered not to consider the absences, in order to avoid indirect discrimination based on the condition of disability, a decision of opposite sign of the Court of Lodi is recorded.
The Court of Lodi, in its judgment of 12 September 2022, after ruling out the existence of direct discrimination in the present case, held that indirect discrimination could not be considered even on the basis of the following observations:
- the illness of the disabled person cannot constitute discrimination and is not more deserving than that of another worker in the non-disabled sector, suffering from a chronic disease or undergoing surgery similar to that of the disabled worker;
- particularly long periods of employment (in the case decided by the Court of First Instance, 15 months' absence in a reference period of 30 months) must also be considered as sufficiently protective for the disabled worker, It would be unreasonable to impose further sacrifices on the employer in terms of the obligation to tolerate non-performance.
The Tribunale di Lodi, therefore, considered that differentiating the behaviour of the disabled worker would have harmful consequences for the employer, in particular, the court of merit stated that "in the face of such a long contractual arrangement, excluding disability-related sickness periods from the calculation would result in a disproportionate burden for the employer, The Court of First Instance held that the Court of First Instance held that the Court of First Instance had jurisdiction to rule on the substance of the case. Reasoning for extreme hypotheses, one could in fact get to think, that the worker who gets sick only because of the diseases attributable to disability, can not be fired and that therefore, not applying the period of behavior, The employer must remain bound to that sine die relationship".
Therefore, periods of sickness of the disabled worker are part of the period of membership provided for by collective bargaining.