Toffoletto e Soci
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Overview
Article 3 of the Italian Constitution introduces a general principle of equality, which prohibits all forms of discrimination. The EU Framework Directive no. 78/2000 of November 27th 2002 was implemented by Law no. 216 of 9th July (the Statute) 2003 and introduced further protections against discrimination. In particular, according to this Statute, 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.
Who's covered?
While the protection granted by article 3 of the Constitution covers all persons, the Statute covers the self-employed too and workers during recruitment, as well as employees throughout the employment relationship and on dismissal. The Statute is applicable to workers in both the public and private sectors.
Discriminatory treatment does not amount to discrimination according to art. 3 of the Statute. In particular situations when:
- 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.
What enforcement/remedies exist?
Both Art. 3 of the Constitution and the Statute are enforceable by the Court. Specifically, the Court can hear disputes arising from employment relationships. The Court may order the employer to pay damages, to stop the discriminatory behaviour, to develop a plan to remove the discriminatory practices and furthermore 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 is 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?
Notwithstanding the long standing tradition of Italian laws to protect against discrimination and the implementation of E.U. Directives, 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?
As outlined above, according to art. 3 of the Statute, treatment which would otherwise be discriminatory does not amount to discrimination under certain circumstances that are objectively justified by legitimate ends and pursued with legitimate and appropriate means.
Retirement ages
Employees possessing the requirements for the Pensione di vecchiaia (old age pension, as defined in art. 1(23) of Law no 335 of 8 August, 1995; therefore the Sistema retributivo, i.e. the pensionable earnings system) can be dismissed without giving any justification.
Interesting cases
Within the context of a collective redundancy procedure, it is quite common to reach an agreement with the Unions, whereby employees close to retirement can be dismissed.
There are some decisions of the Milano Employment Court and of the Supreme Court regarding collective redundancies, where the choice of the employees to be dismissed was based on the possession of the requirements for the old age pension or on the fact that the employees were close to reaching those requirements. In one case the judge stated that since the introduction in the Italian legal system of the non-discrimination principles regarding age, adopting such criteria to choose employees to be dismissed would disadvantage older employees who were closer to pension age than younger employees, and therefore amount to indirect discrimination.