This summary of age discrimination law in Italy has been prepared by Toffoletto De Luca Tamajo e Soci, the Ius Laboris member for Italy: www.toffolettodeluca.it
Article 3 of the Italian Constitution (Constitution) sets out a general principle of equality, which prohibits all forms of discrimination.
Article 15 of the Workers' Statute, dated 20th May 1970, states that any agreement or act directed to: (a) subject the employment of employment to an individual on condition that the individual is of a certain age or (b) dismiss an employee, discriminate him/her in the assignment of jobs or levels of employment, in a transfer, in disciplinary measures, or to cause him/her damages for reasons related to age, is null and void.
The EU Framework Directive no. 78/2000 of November 27th 2002 which was implemented by Legislative Decree no. 216 of 9th July 2003 introduced further protections against discrimination. In particular, the law distinguishes between direct and in direct discrimination.
Direct discrimination occurs when a person is, has been or would be treated less favourably for reasons that include age. Indirect discrimination occurs when an apparently neutral requirement, criteria or general rule places a person at a particular disadvantage or in a less favourable position for reasons that include age, unless such a requirement, criteria or general rule is objectively justified by a legitimate aim and employs methods that are appropriate and necessary.
Harassment is considered a form of discrimination and is defined as any unwanted conduct relating to any of the grounds for discrimination mentioned with the purpose or effect of violating the dignity of a person and creating an intimidating, hostile, degrading, humiliating or offensive environment.
An instruction to discriminate against a person shall be deemed to be discrimination as well.
In additional to the general protection granted by Article 3 of the Constitution which covers all persons, the Workers' Statute covers all employees and the Legislative Decree covers the self-employed and job applicants during the recruitment stage, as well as employees throughout the employment relationship and on dismissal. The Legislative Decree is applicable to workers in both the public and private sectors.
WHAT ENFORCEMENT/REMEDIES EXIST?
Article 3 of the Constitution, Article 15 of the Workers' Statute and the Legislative Decree are enforceable before the Court. Specifically, the Court can hear disputes arising with regard to employment relationships. The Court may order:
- to employer to pay damages;
- to stop the discriminatory behaviour; or
- to develop a plan to remove the discriminatory practices.
In some cases, the Court may publish the decision in a national newspaper.
Compensation is unlimited, but when quantifying damages, the Court will bear in mind whether the discrimination by the employer was in response for a previous court action brought by the employee, or an unfair reaction to a previous case to enforce compliance with the principle of equal opportunities.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
Claims regarding age discrimination issues are very rare and amount to less than 10% of all claims.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
Discriminatory treatment may not amount to discrimination.
As per Article 3 of the Legislative Decree, in particular situations when the act can be objectively justified by a legitimate end and pursued with legitimate and appropriate means, the alleged act may not be deemed discriminatory. Some examples of when an exemption may apply include the following:
- discriminating for these characteristics is essential for particular activities;
- there are particular rules that provide for special conditions to access a job and the training, differentiating among teenagers, young people, elderly workers, according to the particular nature of the working relationship, work policy, the job market and professional development;
- there are particular rules that provide for minimum age conditions and professional experience or seniority to access a job or to have some advantages for the job;
- there are particular rules that provide for hiring up to a maximum age, based on the training required for the job to be performed or to have worked for a certain period before retirement;
- any other difference in treatment that is justified by lawful purposes and pursued appropriately.
Where an employee is eligible for pension benefits (“Pensione di vecchiaia”) (old age pension), an employer is entitled to dismiss the former without giving notice or reason for dismissal.
The age that employees are able to access their pension benefits varies each year, depending on the average life expectancy determined by the National Statistics Institute, which is also validated by EU authorities. As of 2018, the retirement age is 66 years and 7 months for men, and 65 years and 7 months for women. This is subject to change in January 2019.
Notwithstanding this, employees and employers may agree to continuous employment of the former up to 70 years old, in which case, employees would continue to be protected against unfair dismissals.
It is common for employers to agree with unions the criteria in which employees are assessed against when carrying out a collective redundancy exercise. Employers and unions are free to decide the criteria provided that they are (i) objective and (ii) non-discriminatory. Some decisions arrived by the Milano Employment Court and the Supreme Court concluded that if one of the criteria is based on the fact that an employee meets the requisites of retirement, making an employee redundant based on this consideration would be discriminatory. In one case the judge stated this approach would disadvantage older employees closer to pension age than younger employees, and therefore would amount to indirect discrimination.
Another interesting case dealt with “on call” employees. Under an “on call” employment arrangement, employees make themselves available for employers periodically, as per the discretion of the employer. Italian law permits employers to enter into these “on call” arrangements if the employee is under 24 or over 55 years of age. Although the Milan Court of Appeal (COA) decided against this, holding that dismissing employees who have reached the age of 25 is discriminatory, the decision in another Supreme Court decision in February 2018 held up its decision in line with the Italian law. It stated that Article 21 of the EU Charter of Fundamental Rights, as well as Article 6, par. 1 of Directive 2000/78/EC (which regulate equal treatment in matters of employment and working conditions) must be interpreted in the sense that that they do not prevent a provision authorising the employer to sign “on call” employment contracts with employees below 25 and to dismiss employees who have reached 25 years of age. The reasoning of the Supreme Court was because this provision had the effect of pursuing a legitimate purpose of labour and labour market and therefore, did not amount to age discrimination.