10.6092/issn.1561-8048/17954
After having revisited the limits that preside over the exercise of an employer’s power of dismissal, in light of the definition of ‘disability’ and ‘reasonable accommodations’, this paper focuses on the need to reassess this specialized discipline in an anti-discriminatory key, also in order to determine the sanctionatory consequences deriving from the violation of the obligations that rest on the employer.
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Dismissal
Sanctionatory consequences deriving from the violation of the obligation of reasonable accommodations in Italian labour law
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10.6092/issn.1561-8048/17954
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Sanctionatory consequences deriving from the violation of the obligation of reasonable accommodations in Italian labour law
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Sanctionatory consequences deriving from the violation of the                               Italian Labour Law e-Journal
obligation of reasonable accommodations in Italian labour law.                                     Issue 2, Vol. 16 (2023)
Ilaria Bresciani                                                                                         ISSN 1561-8048
ibresciani@uniss.it                                                       https://doi.org/10.6092/issn.1561-8048/17954




          Sanctionatory consequences deriving from the
             violation of the obligation of reasonable
              accommodations in Italian labour law
                                                Ilaria Bresciani

1. Supervention of unsuitability, disability and dismissal for a justified objective reason. 2.
The limits to the employer’s power of dismissal. 3. The influence of anti-discriminatory
law. 4. Sanctionatory consequences of the violation of the obligation of reasonable
accommodations in light of anti-discriminatory protection. 5. Dismissal and reasonable
accommodation in jurisprudential evolution.


                                                        Abstract

    After having revisited the limits that preside over the exercise of an employer’s power of
    dismissal, in light of the definition of ‘disability’ and ‘reasonable accommodations’, this paper
    focuses on the need to reassess this specialized discipline in an anti-discriminatory key, also in
    order to determine the sanctionatory consequences deriving from the violation of the
    obligations that rest on the employer.

    Keywords: Supervention of unsuitability for duties; Disability; Obligation of repechage;
    Obligation of reasonable accommodations; Dismissal.




1. Supervention of unsuitability, disability and dismissal for a justified objective
reason.

   The need to terminate employment for reasons linked to one’s organization, as a
consequence of a legitimate business choice to modify one’s assets (art. 41 Cost.), is
provided for in art. 3 of law n. 604 of 1966, which requires that the employer respect the
limits outlined by the law, such as the effectiveness of the reasons adopted in support of
the dismissal, the link of causality with respect to the position to be suppressed and the
fulfilment of the duty of repechage.1



  Researcher in Labour Law of the University of Sassari. This essay has been submitted to a double-blind peer
review. This article is a reworking and update of the contribution entitled “Le conseguenze sanzionatorie derivanti
dalla violazione dell’obbligo di attuare i ragionevoli accomodamenti, fra licenziamento nullo o ingiustificato”, published in
Variazioni su Temi di Diritto del Lavoro, 2022, n. 2, 279 ff.
1 Gragnoli E., Il licenziamento, la giusta causa e il giustificato motivo, in Gragnoli E. (ed.), L’estinzione del rapporto di

lavoro subordinato, in Persiani M., Carinci F. (dir.), Trattato di diritto del lavoro, Wolters Kluwer-Cedam, Milano-
    Ilaria Bresciani                                                                           Italian Labour Law e-Journal
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    In the past, the notion of justified objective reason permitted the inclusion within limits
of dismissal for supervention of unsuitability for the fulfilment of one’s duties, as a reason
for dismissal justified by the need to protect the interests of the employer and his business,
in cases where there was no attributable worker behaviour. 2
    This solution was outlined in absence of a specific legal discipline and has the merit of
abandoning the previous orientation, which led the particular case to the supervened
impossibility of civil origin.
    Nonetheless, with Law n. 68 of 1999, and then with art. 42 of Legislative Decree n. 81
in 2008 dismissal for supervened unsuitability and/or disability obtained its own specific
regulation.
    Despite the traditional reference to the notion of justified objective reason in art. 3 Law
n. 604 of 1966,3 no special normative regulation contains such reference.
    The laws which preside over the dismissal of an unsuitable and/or disable employee are
qualitatively and quantitatively different, and demand the respect of greater limits than
those which preside over dismissal for “other” objective reasons, for example so called
“economic” reasons, (only) sharing with the latter the consideration of dismissal as extrema
ratio.
    To prove the fact that we are in the presence of a case of its own, were it not sufficient
to consider the specific discipline, even the reforms of the sanctionatory regimes following
Law n. 92 of 2012 and Legislative Decree n. 23 of 2015 determined in detail the
consequences linked to this case of dismissal by deconstructing protection depending on
the reason for dismissal and the “weight” of the employer’s violation, although making
different choices. 4
    Therefore, the limits to the power of dismissal and the sanctionatory consequences of
their violation must be determined by looking at the entire discipline of the right to/of
labour of people with an unsuitability and/or disability.
    It is not an easy task since we are before a fragmented regulation, embedded in many
sources, each with its own field of application depending on whether the dismissal
concerns an employee who is declared unsuitable and/or disable. This concerns norms
which were issued in different times and with different aims, which graded the intensity of
the procedures and the obligations resting on the employer in proportion to the
seriousness of the disadvantages caused to the employee. Nonetheless, the principles of
supranational derivation, which are now fully part of our regulations, act as a link for a
unified interpretation of the normative context in an anti-discriminatory sense.



Padova, 2017, 288, 348 ff.; Perulli A. (ed.), Il licenziamento per giustificato motivo oggettivo, Giappichelli, Torino,
2017.
2 Cass. S.U. 7 August 1998, n. 7755, in Giustizia civile - Massimario annotato dalla Cassazione, 1998, 1668.
3 See Cass. 24 May 2005, no. 10914, in Diritto delle relazioni industriali, 2007, 1, 199; Cass. 6 March 2007, no.
5112, in D&L: Rivista critica di diritto del lavoro, 2007, 2, 504; Trib. Ravenna 29 October 2007, ord.; Cass. 23
April 2010 no. 9700; Cass. 12 January 2017 no. 618, Diritto & Giustizia, 2017, 13 January.
See, Ferraresi M., L’obbligo di repêchage tra riforme della disciplina dei licenziamenti e recenti pronunce di legittimità, in
Variazioni su Temi di Diritto del Lavoro, 2016, no. 4, 833 ff., 835.
4 Cester C., Le tutele, in Gragnoli E. (ed.), nt. (1), 726 ff., 977 ff.



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    Ilaria Bresciani                                                                           Italian Labour Law e-Journal
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2. Limits to the employer’s power of dismissal.

    The regulation foresees four cases for protection, two of which are regulated by general
norms and two by a sectorial norm.
    Law n. 68 of 1999, named “Norms for the right to employment of the disabled” (the
first to be issued) foresees two situations in regulating the system of so called targeted
employment: that of a worker employed via ordinary procedures, whose supervened
unsuitability leads to exceeding the limits outlined in art. 1 comma 1 (regulated by art. 4
comma 4); and that of an already disable employee, employed via targeted employment,
whose health worsens during his or her employment or who is no longer suitable for the
fulfilment of his or her duties due to significant changes made by the employer to the
organization of the work (art. 10 comma 3). Subsequently, art. 42 of Legislative Decree n.
81/2008 extended the same protection to another category, that of employees employed
via ordinary procedures who become unable to fulfil their original duties, but who do not
have a disability. Nonetheless, following Legislative Decree n. 216 of 2003, it is necessary
to distinguish within this category workers who were employed via ordinary procedures
who have become unable to complete their duties due to a disability, according to the
definition of international derivation, and who, in addition to being protected by the
aforementioned art. 42 cit., also benefit from anti-discriminatory protection.5
    In fact, in addition to the limits to the employer’s power of dismissal standardized by
the above regulations, we must include limits derived from European Directive n. 78/2000
by means of Legislative Decree n. 216 of 2003,6 which are applied in all cases where the
unsuitability derives from a condition of disability in a bio-psycho-social sense, according
to the notion in UN Convention of 2006 (adopted by Law n. 18 of 2009).7
    Such further limits consist in forbidding direct and indirect discrimination due to
disability (this factor of discrimination is included in art. 15 St. lav.) and in the so-called
obligation of reasonable accommodations (in actual fact, inserted in comma 3-bis of art. 3
of Legislative Decree n. 216/2003 successively with Law Decree no. 76 of 2013).8
    Starting with the duty of repechage, in this special discipline, the weight and intensity are
different from the limit which presides over justified objective reason ex art. 3 of Law n.
604 of 1966, in that its absolution does not depend solely on the existence of other
available duties, but also on the compatibility of these duties with the capabilities of the
employee, so that, to start with, the characteristics of the impairment which caused the

5 Voza R., Sopravvenuta inidoneità psicofisica e licenziamento del lavoratore nel puzzle normativo delle ultime riforme, in
Argomenti di Diritto del lavoro, 2015, 4-5, 771 ff.
6 Dir. 2000/78/CE.
7 See: CJEU 11 July 2006, C-13/05, Chacon Navas, in Rivista Italiana di Diritto del Lavoro, 2007, 4, 758 ff., with

note by Giappichelli G., La Corte di giustizia si pronuncia sulla nozione di handicap: un freno alla vis expansiva del diritto
antidiscriminatorio?, in Rivista italiana di diritto del lavoro, 2007; Mégret F., The Disabilities Convention: towards a
Holistic Concept of Rights, in The International Journal of Human Rights, 2008, 261; Lawson A., Reasonable
accommodation in the Convention on the Rights of Persons with Disabilities and non-discrimination in employment: Rising to the
challenges? , in O’Mahony C., Quinn G. (Eds.), Disability law and policy, An analysis of the UN Convention, Clarus
Press, London, 2017.
8 Issued following the sentence that condemned Italy for failing to comply with the obligation of reasonable

agreements, see CJEU – Case C-312/11, European Commission vs. Italy, ECLI:EU:C:2013:446.

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unsuitability impact on the “space” within which an another position of employment can
be reasonably found. 9
    Another question pertains the breadth of the repechage, in light of the modifications
following Legislative Decree n. 81 of 2015 in art. 2103 Civil Code, that is to say the fact
that the new discipline of the duties determines the margins of the extension of the
obligation of repechage also with reference to cases of dismissal for supervened inability. 10
    Art. 4 co. 4 of Law n. 68/1999, and later also art. 42 of Legislative Decree n. 81/2008
establish that the employee must be assigned, where possible, “equivalent duties or, where
this is not possible, inferior duties thus guaranteeing compensation which corresponds to
the original duties”. 11
    These are special norms which do not refer to the general discipline of art. 2103 Civil
Code, but rather are exceptions to the codified regulation. 12
    In fact, with the first reform of 2015,13 when art. 2103 Civil Code forbade the
assignment of non- equivalent duties, let alone inferior duties, in case of supervened
unsuitability, the employer had to find an equivalent position first of all, or, in the absence
of such a position, an inferior position.14
    In the same way, according to the current formulation of the codified norm, the limits
of jus variandi should not be applied in cases of supervened unsuitability.
    In fact, the codified norm distinguishes the modes and limits of the removal of duties
according to whether this is determined by an exclusive need of the employer or if there is
a concurrent interest of the employee. In the first case, a unilateral removal of duties is
admissible (within an inferior level albeit without modifying the legal category, and with the
right to preserving the financial compensation) only “in the case of modification of the
business’ organizational assets which impacts on the employee’s position” and in other
cases provided for in collective contracts; in the second case, an agreed removal of duties is
permissible within a protected place (without limitations or guarantee of maintaining
compensation) “in the interest of the employee for the preservation of employment, the
acquisition of a different profession or the improvement of living conditions.”
    Instead, the aim of the special discipline is to ensure the employer does everything
possible before terminating the employee who finds him or herself in a disadvantageous
position, thus favouring repechage even when the type and degree of inability limit the

9 As regards internal “space” within which the employer must fulfill the obligation of repechage, see Cass. 15
July 2010, n. 16579, D&L: Rivista critica di diritto del lavoro, 2010, 3, 857, and Cass. 31 March 2016, n. 6254,
which highlight all productive units, including those abroad, and also all firms belonging to the same business
group; also see Cass. 16 November 2015, n. 23698 and Cass. 23 April 2010, n. 9700, according to which the
employer does not need to modify his or her organization in order to create new positions in the interest of
safeguarding the relationship.
10 Lai M., Recenti sviluppi in tema di inidoneità sopravvenuta, in Rivista Italiana di Diritto del Lavoro, 2018, III, 37.
11 Giubboni S., Sopravvenuta inidoneità alla mansione e licenziamento. Note per una interpretazione “adeguatrice”, in

Rivista Italiana di Diritto del Lavoro, 2012, 1, 291 ff., 300.
12 Garofalo D., La tutela del lavoratore disabile nel prisma degli accomodamenti ragionevoli, in Argomenti di Diritto del

Lavoro, 2019, 6, 1222, 1238.
13 See Spinelli C., La sfida degli “accomodamenti ragionevoli” per i lavoratori disabili dopo il Jobs Act, in Diritti Lavori

Mercati, 2017, 1, 39 ff.
14 Cass. 5 August 2000, no. 10339, Giustizia civile - Massimario annotato dalla Cassazione, 2000, 1730; Cass. 25

November 2010, no. 23926, Diritto & Giustizia online, 2010.

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     Ilaria Bresciani                                                             Italian Labour Law e-Journal
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employee’s capabilities, thus forcing the employer to assess all possible solutions which are
compatible with the employee’s personal conditions, in order to reach a reasonable
accommodation.15 And, in order to offer adequate protection, the law gives the employer
the actual right (and not a mere interest) to the preservation of the position, and,
furthermore, the right to maintaining the retribution corresponding to the original duties is
also provided for. 16
    In as much as the legal waivers, which already existed before the reform of art. 2103
Civil Code, remain valid and unprejudiced, an influence of the codified norm does exist
regarding the concept of equivalency, since the new formulation no longer refers to the
profession and allows horizontal jus variandi among all the duties found within the same
contractual level thus extending the chances of horizontal mobility, impacting on the
meaning that the term “equivalent duties” takes on nowadays.
    Therefore, for the repechage of the employee unsuitable and/or with disabilities, firstly it
will be necessary to evaluate available duties within the same contractual level of those of
the original position and, in the absence of such duties, it will be necessary to evaluate
available duties in inferior levels, and to propose the assignment of duties which, in any
case, are compatible with the employee’s health.
    While art. 2103 Civil Code is relevant, in its entirety, to define the limit of invariability in
pejus of the employment of employees, where the modification of their duties becomes
necessary in order to fulfil the duty of so-called reasonable accommodations.17
    The regulation assigns another obligation to the employer, which exists before or at the
same time as the repechage.
     In the face of supervened unsuitability for duties, art. 42 Legislative Decree n. 81/2008
states that “the employer…takes the measures indicated by the competent doctor”.
    Given art. 41 comma 6, the literal interpretation of the norm could indicate that, in
giving his or her expert opinion, the competent doctor must indicate the prescriptions or
limits that he or she considers useful and which the employer must take into consideration,
only in cases of partial, temporary or permanent unsuitability, and which, in the case of
total unsuitability, if temporary, is sufficient to specify the validity of time limits.
    Nevertheless, an extensive interpretation of the norm seems more convincing,
according to which even in case of total and permanent unsuitability for duty, the qualified
physician must prescribe the measures to be adopted, since, were there no specific
indication of what the employee can or cannot do in his or her current state of health, the
employer would not be able to assess the compatibility of other available duties.
    In any event, the aforementioned “measures indicated by the competent doctor” fall
within the concept of reasonable accommodation of super-national derivation, but do not
coincide with it.18

15 C. App. Venezia, 5 April 2022.
16 Contra, Trib. Roma, 24 July 2017.
17 Considering n. 20 in Dir. 2000/78/EC gives sharing of tasks as an example of reasonable agreement. It

refers to the position of the workplace, adjustment of the equipment, of the work hours, the distribution of
tasks, training, and in general to finding suitable solutions within the workplace.
18 For example, these can consist in not requiring the employee to lift objects over a certain weight, or not

having him or her stand for a certain amount of time, or not having him or her work in a damp place, and so

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   The same can be said regarding the reference in art. 10 comma 3 of law no. 68/1999,
which presides over the supervened unsuitability for a specific duty of the disabled
employee hired via targeted employment due to a worsening of his or her health (in
addition to significant variations of the work assigned). The norm states that “dismissal can
take place if the aforementioned commission has verified the definitive impossibility of
reinserting the disabled employee within the company, despite all possible changes to the
work assigned”.
   Despite the fact that the expression “possible changes to the work assigned” seems to
recall the concept of “reasonable accommodation”, the term can be exclusively referred to
the measures indicated by the Commission which determines the suitability, 19 and where
such measures do not exhaust the super-national concept of reasonable accommodation.
   The obligation of “reasonable accommodation”, which already distinguishes itself in
that it must be respected in all phases of the working relationship (not only at the time of
dismissal), is wide and general, and encompasses all the concrete measures which can be
taken by (and on the initiative of) the employer, in relation to his or her own company and
his or her own financial resources (therefore following medical prescriptions and the duty
of repechage), thus requiring an organizational and economic effort linked to the
consolidated principle of the intangibility of the business choices which until now had
absolved the employer from having to change company assets in order to find other
positions or modify existing ones.20
   European Directive n. 78/2000 and the UN Convention of 2006 give examples of the
possible content,21 but all possible solutions must be assessed according to each specific
case.
   The obligation of reasonable accommodation redefines the limits to the power of
dismissal which weigh on the employer when the unsuitability for the duties is caused by a
disability according to the notion of international derivation based on the bio-psycho-social
model, which takes into account even temporary impairment provided it is lasting and the
limits which might also derive from the surrounding environment, and which concludes by
also including employees who are not considered disabled according to the law presiding
over targeted employment. 22

on. See Giubboni S., nt. (11), 303, according to whom these measures (art. 42 of Decreto Legislativo 09 Aprile
2008, n. 81 and art. 10, comma 3, Legge 12 Marzo 1999 n. 68) translate the internal regulations as the level is
specifically prescribed in art. 5 in Dir. 2000/78/EC (obligation of reasonable agreements).
19 Cass. 28 April 2017, no. 10576, Giustizia Civile Massimario, 2017.
20 De Mozzi B., Sopravvenuta inidoneità alle mansioni, disabilità, licenziamento, in Lavoro Diritti Europa, 2020, 2, 1 ff.
21 See Considering n. 20, Dir. 2000/78/EC.
22 Regarding the notion of disabled person in the jurisprudence of the Court of Justice see: CJEU - Case C-

13/05, Sonia Chacón Navas v Eurest Colectividades SA, ECLI:EU:C:2006:456; CJEU – Case C-303/06, S.
Coleman v Attridge Law and Steve Law, ECLI:EU:C:2008:415; CJEU – Joined Cases C-335/11 and C-
337/11, HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C‑335/11) and HK
Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro
Display A/S (C‑337/11), ECLI:EU:C:2013:222; CJEU – Case C-354/13, Fag og Arbejde (FOA) v
Kommunernes Landsforening (KL), ECLI:EU:C:2014:2463.
On the definition of disabled people in national jurisprudence see Cass. 4 February 2016, no. 2210, Rivista
Italiana di Diritto del Lavoro, 2016, 3, II, 553; Cass. 3 November 2015, no. 22421, Rivista Italiana di Diritto del
Lavoro, 2016, 3, II, 480; Trib. Ivrea 24 February 2016; Cass. 19 March 2018, n. 6798, Rivista Italiana di Diritto

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3. The Influence of anti-discriminatory law.

   The questions of interpretation which are brought to our attention nowadays with
regard to the consequences of the violation of the duty of reasonable accommodations
stem from the fact that the (varied) panorama of norms, composed of art. 4 and art. 10 of
Law no. 68 of 1999, as well as art. 42 of Legislative Decree n. 81/2008, was issued and
consolidated prior to the confirmation of disability as a forbidden discriminatory factor,
totally forbidding autonomous dismissal for supervened disability over justified objective
reason as per art. 3 in Law no. 604 of 1966, and within an anti-discriminatory context.
   The same reforms of the factionary regimes presided over (and diversified “strictly
speaking” the illegitimacy of dismissal for justified objective reason) the consequences of
the violation of the limits to the power of dismissal with specific reference to the violation
of art. 4 comma 4 and 10 comma 3 of Law no. 68 of 1999, and did not wholly encompass
the principles deriving from supranational sources.
   Their implementation has represented a fundamental passage in the evolution of the
right to employment for the disabled, but the process of adjustment lasted a decade.23
   Therefore, the limits to the power of dismissal and the consequences of their violation
must be reassessed in light of the normative evolution described,24 which has determined a
real paradigm shift, thanks to which the right to employment for the disabled must be
guaranteed by the principle of equality and parity of compensation.25
   With the exclusion of no. 17 of European Directive no. 78/2000,26 the implementation
of the principles of supranational derivation is determined by the necessary collaboration of
the employer, who must consider the possibility of resorting to every reasonable
organizational and technical solution in order to allow access to and maintaining
employment.
   Legislative Decree n. 216/2003 has a clear anti-discriminatory aim. From the moment it
was issued, disabled people who enter (or who wish to enter) the world of work, 27 with or
without targeted employment, have the right not to be subject to discriminatory treatment
due to their personal situation, and have the right to the employer’s collaboration who, in
compliance with the obligation to adopt reasonable accommodations where possible and


del Lavoro, 2019, 2, II, 145; Cass. 26 October 2018, no. 27243, Rivista Italiana di Diritto del Lavoro, 2019, 2, II,
146; Cass. 21 May 2019, no. 13649, Giustizia Civile Massimario, 2019; Cass. 28 October 2019, no. 27502,
Giustizia Civile Massimario, 2019; Trib. Milano 24 December 2019. On this point, see Favalli S., Ferri D.,
Defining Disability in the EU Non-Discrimination Legislation: Judicial Activism and Legislative Restraints, in European
Public Law, 2016, 3, 1 ff. ; Barnes C., The Social Model of Disability: Valuable or Irrelevant?, in Watson N.,
Roulstone A., Thomas C. (eds), The Routledge Handbook of Disability Studies, Routledge, 2012.
23 Consider the changes which Decreto Legislativo 09 Settembre 2015 n. 151 to the Legge 12 Marzo 1999 n.

68, in order to improve the regulation of targeted employment (see Garofalo D., Jobs act e disabili, in Rivista di
Diritto della Sicurezza Sociale, 2016, 1, 108 ff.), and the Legge 22 Dicembre 2021 no. 227, reforming Legge 5
Febbraio 1992 n. 104 (see Bonardi O., Luci e ombre della nuova legge delega sulla disabilità, in
www.italianequalitynetwork.it ).
24 Giubboni S., nt. (11), 291.
25 Ferrara M.D. (ed.), Disabilità e lavoro tra tutela antidiscriminatoria e inclusione reale, in Variazioni su Temi di Diritto

del Lavoro, 2020, 4.
26 See the Considering n. 17 of Dir. 2000/78/CE.
27 Garofalo D., Disabili e insider/outsider theory, in Giurisprudenza Italiana, 2020, 2, 375 ff.



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within the fixed limits, actively contributes to create the desired condition of equality, even
with additional expenses, provided they are reasonable (useful to guarantee the right to
employment and not financial support) and not disproportionate (not excessively taxing, in
relation to the concrete situation). 28
    All employers, public and private, must comply for the entire duration of the work
relationship, from employment to dismissal.29 Non-compliance affects the validity of
dismissal if the employer does not demonstrate that he or she is not obliged or was unable
to comply. In the first case, the employer must prove that the employee does not
correspond to the profile of “disabled person” sanctioned by UN Convention of 2006;
while, in the second case, the employer must demonstrate that there are no measures which
allow the continuation of employment, or that the introduction thereof would result in a
sacrifice for the other employees, or that the compensation would require unsustainable
economic costs for the employer’s financial means, and not mitigated by the possibility of
receiving ad hoc public resources. 30


4. Sanctionatory consequences of the violation of the obligation of reasonable
accommodations in light of anti-discriminatory protection.

   The question regarding the consequences of the violation of the obligation (and
therefore refusal) of implementing changes where possible has not been fully resolved to
date.
   Legislative Decree n. 216 of 2003 does not address the issue, and, similarly, Law n. 92 of
2012 (which came into effect before the introduction of the obligation of reasonable
accommodations) and Legislative Decree n. 23 of 2015, which changed the sanctions
applied in case of dismissal which violates special norms regarding supervened unsuitability
and/or disability, contain no reference to Legislative Decree n. 216 of 2003, but rather to
arts. 4 comma 4 and 10 comma 3 of Law n. 68/1999.
   It would seem that Law n. 92/2012 and, in part, Legislative Decree n. 23/2015,
remained anchored to the qualification of the particular case in terms of justified objective
reason ex art. 3 of Law n. 604/1966, without giving due consideration to how the
normative evolution has veered substantially from that notion.
   An example is the fact that art. 18 comma 7 St. lav. refers to “lack of justification of
dismissal…for objective reason consisting in the physical or psychic unsuitability of the
employee”, just as art. 2 comma 4 of Legislative Decree n. 23/2015 refers to “lack of


28 Regarding the notion of “reasonable agreements”, see Lawson A., Ferri D., Reasonable accommodation for
disabled people in Employment, European Union, 2016; Ferri D., Reasonable Accommodation as a Gateway to the Equal
Enjoyment of Human Rights: From New York to Strasbourg, in Social Inclusion, 2018, 1, 1 ff. In national
jurisprudence see Cass. 23 February 2021, no. 4896, Diritto & Giustizia, 2021, 24 febbraio; Cass. 9 March 2021,
no. 6497, Rivista Italiana di Diritto del Lavoro, 2021, 4, II, 597.
29 Barbera M., Le discriminazioni basate sulla disabilità, in Barbera M. (ed.), Il nuovo diritto antidiscriminatorio. Il

quadro comunitario e nazionale, Giuffrè, Milano, 2007, 77 ff.
30 See art. 13, Legge 12 Marzo 1999 n. 68.



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justification” of dismissal “for reasons consisting in the physical or psychic disability of the
employee”.
   In truth, despite a proposed constitutional interpretation according to which the terms
“unsuitability” and “disability” are used by the legislator as synonyms,31 from a literal point
of view, the two norms are different.32
   Art. 18 comma 7 St. lav. (issued before the obligation to adopt reasonable
accommodations was made official) confirmed the traditional view of supervened
unsuitability for duties as a justified reason, against those who violate the special protective
discipline which safeguards fragile employees, foreseeing the application of the so called
lessened re-integratory protection.33 Such protection is applied in all cases where the special
discipline is violated, both when the unsuitability derives from a disability and in the
contrary case, recalling the concept of “unsuitability” and the regulations of law no. 68 of
1999.34
   On the other hand, art. 2 comma 4 of legislative decree no. 23/2015 recalls the concept
of “disability” (not “unsuitability”) and, despite increasing the level of protection with the
application of full re-integration as per comma 1, does not actually include dismissal for
supervened disability in the category of discriminatory dismissal; this case is distinct from
discrimination for other factors, and in fact it does not refer to discrimination but a “lack
of justification for reasons consisting in disability”, considered apart, in comma 4, instead
of comma 1, which is recalled only to extend strong protection. 35
   Given the lack of reference to “unsuitability”, the increase of protection for the disabled
contrasts with a decrease of protection for the non-disabled person who has become
unsuitable for his or duties, and to whom, in the absence of guidelines, one applies the
protection in art. 3 comma 1 which provides for all cases of illegitimate dismissal for
justified objective reason. 36
   Nonetheless, the ratio of supranational sources highlights the need to requalify in
discriminatory terms of dismissal for supervened unsuitability where this is caused by a
disability.
   The notion of reason accommodations has absorbed the specific limits to the power of
dismissal (it also includes the limits to the power of dismissal already provided for by the

31 Unsuitability v. Disability see Cass. 28 October 2019, n. 27502, Giustizia Civile Massimario, 2019. Giubboni S.,
Disabilità, sopravvenuta inidoneità, licenziamento, in Rivista Giuridica del Lavoro e della Previdenza Sociale, 2016, 621.
32 Voza R., nt. (5), 772.
33 Casale D., Malattia, inidoneità psicofisica e handicap nella novella del 2012 sui licenziamenti, in Argomenti di Diritto del

Lavoro, 2014, 2, 401 ff.
34 In fact, the norm containing the term “also” alludes to the fact that there are other cases of dismissal for

justified objective reason which benefit from enforced safeguarding; the doctrine immediately singled out the
case in art. 42, Decreto Legislativo 9 Aprile 2008 n. 81, see Maresca A., Il nuovo regime sanzionatorio del
licenziamento illegittimo: le modifiche all’art. 18 Statuto dei lavoratori, in Rivista Italiana di Diritto del Lavoro, 2012, 415 ff.
35 Lambertucci P., Il lavoratore disabile tra disciplina dell’avviamento al lavoro e tutela contro i licenziamenti. Brevi note a

margine dei provvedimenti attuativi del c.d. Jobs Act alla “prova” della disciplina antidiscriminatoria, in Argomenti di Diritto
del Lavoro, 2016, 6, I, 1147 ff.
36 Voza R., nt. (5), 786, highlighted how dismissal for supervened unsuitability is not automatically equal to

discriminatory dismissal, as in the case of people with disability. Regarding the violation of art. 42 of
legislative decree n. 81/2008 and the case of invalidity for contrast of imperative norms (art. 32 Cost.) in
order to apply full re-integration, see Lai M., nt. (10), 46.

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special discipline), in addition to increasing the number and type of behaviour required of
the employer.
    Therefore, the violation of the limits to the power of dismissal equals the refusal to
implement reasonable accommodations, which is a discriminatory behaviour in itself. 37
    In fact, comma 3-bis of art. 3 of Legislative Decree n. 216/2003, which regulates the
obligation of reasonable accommodations, expressly recalls the definition supplied by the
UN Convention on the rights of people with disabilities of 2006 (ratified by Italy with law
n. 18 of 2009), which states what is intended by “discrimination based on disability” in art.
2, that is to say it “includes every form of discrimination, including the refusal of
reasonable accommodations. 38
    A reasonable accommodation is a tool which removes disparity, and, therefore, the
refusal to adopt possible solutions constitutes a form of discrimination which is forbidden
by our regulations.
    We are no longer looking at a lack of a substantial premise of the notion of justified
objective reason, but rather the lack of foundation for dismissals.
    The incongruence of the sanctionatory system derives from regulating the various
protection regimes of dismissal for disability (in a bio-psycho-social sense) which occurred,
as it was not always applied in other discriminatory dismissals; instead, depending on the
dimensions of the employer and the date of commencement of employment, the constant
illegitimate dismissal for lack of objective reason entails the application of various
sanctions, also in cases of pure compensation (art. 8 of Law n. 604/1966).
    It is true that Directive 78/2000/CE (and not even the UN Convention) does not
oblige States to provide for the reintegration and complete compensation for damages in
favour of the employee who has been discriminated against, although the sanctions could
also include financial compensation, provided they are “effective, proportionate and
dissuasive”. 39
    The fact remains that our regulations for discriminatory dismissal provide for a strong
and single protection (which does not differentiate between big and small cases), and it is
incomprehensible why all employees who are discriminated against for one of the other
forbidden factors (age, political orientation, union, religion, etc.) should resort to it, but not
disabled employees, for whom the refusal to implement reasonable accommodations
(according to the law) constitutes a discriminatory behaviour, since disability is included in
art. 15 of Workers Statute.
    Nonetheless, art. 18 comma 1 recalls the causes for discrimination in art. 3 Law n. 108
of 1990, which recalls art. 4 Law n. 604 of 1966 and art. 15 St. lav., as modified by art. 13

37 Peruzzi M., La protezione dei lavoratori disabili nel contratto di lavoro, in Variazioni su Temi di Diritto del Lavoro,
2020, 945; Simoncini G.R., I limiti al licenziamento del lavoratore disabile. Una proposta interpretativa alla luce del diritto
antidiscriminatorio, in Labor, 2021, 2, 207 ff. In national jurisprudence see, Trib. Pisa, 16 April 2015; Trib. Asti,
23 July 2018 and Trib. Roma, 8 May 2018.
38 The Court of Justice itself has always clarified that Dir. 2000/78/CE must be interpreted according to the

ONU Convention, see CJEU – Case C-824/19, TC, UB v Komisia za zashtita ot diskriminatsia, VA, point 59;
CJEU – Case C-485/20, XXXX v HR Rail SA. The Court of Cassation holds the same view, see Cass. 12
November 2019, no. 29289, Giustizia Civile Massimario 2019.
39 Art. 17, Dir. 78/2000/CE.



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Law n. 903 of 1977, which was not updated with further discriminatory factors introduced
by Legislative Decree n. 216 of 2003, the need for coordination between the various norms
forces us to consider the notion of discriminatory dismissal in light of all forbidden
reasons.
    According to legal interpretation “the invalidity of discriminatory dismissal is a direct
consequence of the violation of specific norms of internal law, as art. 4 of Law n.
604/1966, art. 15 of the Statute of employees, and art. 3 of Law n. 108/1990 (as well as
European law…), so that, differently from the case of retaliatory dismissal, the subsistence
of an illegitimate reason is not necessary as per art. 1345 Civil Code, nor can discriminatory
nature be excluded from the concurrence of another end, albeit legitimate, such as
economic reasons”. 40
    If we then consider that art. 4 of Legislative Decree n. 216/2003 states that the
employee who has been a victim of discrimination can press charges with a summary legal
proceeding of cognition regulated by art. 28 from Legislative Decree n. 150/2011, which
establishes that if the judge finds a discriminatory behaviour (such as the violation of the
obligation of reasonable accommodations), he or she orders that such behaviour must
cease, as well as the prejudiced behaviour or act and all other suitable measures to remove
the effects must be adopted,41 it would appear unreasonable that an employee is protected
in toto in another phase of the relationship, but even less so in the case of dismissal, where
different degrees and intensity of protection are possible.
    Therefore, the omissions of the employer, notwithstanding subjective discrimination on
his or her part, should entail the dismissal to be declared invalid as well as the application
of the sanction provided for discriminatory dismissal.42 And while Legislative Decree n.
23/2015, despite all the interpretative doubts raised, recalls the violation of the discipline of
supervened disability and the sanctionatory consequences provided for discriminatory
dismissal, art. 18 comma 7 St. lav. poses the problem of constitutional legitimacy in relation
to art. 3 Cost. where, recalling art. 4 comma 4 and 10 comma 3 of Law n. 68 of 1999, an
inferior protection (even if re-integratory) recalls discrimination deriving from disability
with respect to that found in comma 1 for discrimination deriving from other forbidden
factors.43




40 Cass. 5 April 2016, n. 6575, IUS Lavoro 2016, 27 maggio; Cass. 9 June 2017, no. 14456, Rivista Italiana di
Diritto del Lavoro, 2017, 4, II, 708; Cass. 19 December 2019, n. 34132, IUS Lavoro, 6 APRILE 2020.
41 Garofalo D., nt. (12), 1246.
42 De Mozzi B., nt. (20); Malzani F., Inidoneità alla mansione e soluzioni ragionevoli: oltre il repechage, in Argomenti di

Diritto del Lavoro, 2020, 4, 965, 973; Bonardi O., L’inidoneità sopravvenuta al lavoro e l’obbligo di adottare soluzioni
ragionevoli in una innovativa decisione della Cassazione, in Questione Giustizia, 2018, 3.
43 Lambertucci P., nt. (35), 1167.



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5. Dismissal and reasonable accommodation in jurisprudential evolution.

   Thus far, the reconstruction proposed does not appear to have been followed by the
legal system.
   As regards cases provided for by the application of art. 18 St. lav. modified by law no.
92/2012, apart from a few sentences which enforced the protection outlined in art. 18
comma 1 in the face of violation of the obligation of reasonable accommodations,44 the
Court of Cassation appears to confirm the application of the sanctionatory regime in art. 18
comma 4.45
   The main question regards the relationship/connection between the obligation of
reasonable accommodation and other existing obligations, in particular repechage, which has
always represented the element qualifying the supervened unsuitability and /or disability ex
arts. 4 comma 4 of Law n. 68/1999 and 42 of Legislative Decree n. 81/2008.
   According to an initial reconstruction, the obligation of reasonable accommodations
integrated the notion of justified objective reason for the disabled, adding to the obligation
of repechage intensifying it. 46
   Given this framework, the obligation of reasonable accommodation configures a further
element of the notion of justified objective reason and concurs with the specific discipline
to outline the limits to the employer’s power of dismissal; therefore, if the employer does
not demonstrate that he or she concretely assessed, even with a negative outcome, the
possibility of implementing reasonable solutions which could be applied in the workplace,
the dismissal is illegitimate and the judge sentences the employer applying the sanctions
provided for the violation of the special discipline regarding supervened unsuitability or
inability, that is the sanctions determined by the violation of art. 4 comma 4 and 10 comma
3 of l. n. 68 of 1999 (which, according to art. 8 l. 604/1966, require compulsory protection,
according to art. 18 St. lav. require reduced re-integration and according to Legislative
Decree n. 23/2015 require full re-integration). 47
   On the other hand, because of another implementation of reasonable accommodation,
it remains outside of the notion of justified objective reason, which is unchanged,
maintaining the obligation of repechage as a qualifying element.48
   Such implementation considers the obligation of reasonable accommodation as
autonomous with respect to the obligation of repechage. So that, the violation of the first


44 Trib. Pisa, 16 April 2015; Trib. Asti, 23 July 2018 e Trib. Roma, 8 May 2018.
45 Cass., ord., 21 March 2022, n. 9158, IUS Lavoro, 13 APRILE 2022, where the Court states that the violation
of the obligation to assign the employee possible alternative duties constitutes possible sanctions with re-
integration «when it is clear that there is no basis for dismissal»; Cass. 9 March 2021, n. 6497, Rivista Italiana di
Diritto del Lavoro, 2021, 4, II, 597. On the other hand, where service is no longer possible, totally and
definitely, where it is not possible for the employee to carry out alternative duties, the law states a just cause
ex art. 2119 c.c. for the impossibility to continue the professional relationship, with the exclusion of notice,
see Cass. 9 May 2019, n. 12373, Diritto delle Relazioni Industriali, 2020, 2, 540.
46 Giubboni S., Il licenziamento per sopravvenuta inidoneità alla mansione dopo la legge Fornero e il Jobs Act., in WP

C.S.D.L.E. “Massimo D’Antona”.IT, n. 261/2015, where the Author refers to a “stengthened” notion of
justified objective reason.
47 Giubboni S., nt. (46).
48 Bonardi O., nt. (42).



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entails the declaration of the invalidity of the dismissal as discriminatory, while non-
observance of the second entails the application of the protection provided for, according
to the applicable regimes, the violation of the special discipline.49
    Both orientations appear to be based on the premise of different content between the
obligation of repechage and the obligation of reasonable accommodation.
    Nonetheless, in light of the supranational notion of “reasonable accommodation”, as
reconstructed in the previous paragraphs, the two concepts overlap in that the obligation of
repechage configures a measure of reasonable accommodation, with the re-employment of
the employee with duties which are suitable for his or her health among the measures
which the employer must adopt to avoid dismissal.
    A recent sentence by the Court of Justice has supported this view, as it established that

                “art. 5 of directive 2000/78/CE…must be interpreted in the sense that the notion
                of «reasonable solutions for the disabled»…implies that employees, including those on
                apprenticeship after employment, who are declared unsuitable to carry out the
                essential functions of their position because of disability, are assigned to another
                position for which they have the required competencies, capabilities and availability,
                unless such measures impose a disproportionate encumbrance on the employer”. 50
    Therefore, according to the Court of Justice, the obligation of repechage is a reasonable
solution. In fact, n. 20 of the European Directive, lists possible adjustments required of the
employer, refers to the “adjustment of the workplace” and, in upholding the sentence,
states that this can also consist in “transfer to another workplace”; furthermore, such a
solution must be assessed as a priority with respect to other measures of adjustment of
the workplace,51 but the possibility of assigning the employee with disabilities to another
workplace “exists only in the presence of at least one vacancy which the employee can
fill”.52
    There are two consequences to consider.
    The first is that assigning other duties to the employee can (legitimately) be “refused” by
the employer if this entails, not only organizational burdens, but also disproportionate and
excessive encumbrances. The organizational connotation that characterizes the correct
exercise of the power of dismissal is stronger than that required by the notion of justified
objective reason in art. 3 of Law n. 604/1966, which does not require the employer to
make the structure compatible with the needs of the employee.
    The second is that if the search for other available duties is a reasonable
accommodation, then also the violation of the obligation of repechage is a discrimination,53
with sanctionatory consequences.



49 Voza R., nt. (5), 782; Casale D., nt. (33), 410; Lambertucci P., nt. (35), 1160, according to which failure to
adopt reasonable agreements is direct discrimination.
50 CJEU – Case C-485/20, XXXX v HR Rail SA, ECLI:EU:C:2022:85.
51 Ibidem.
52 Ibidem.
53 Peruzzi M., nt. (37), 945.



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Copyright © 2023 Ilaria Bresciani. This article is released under a Creative Commons
Attribution 4.0 International License




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