From the Case Law concerning maximum sick leave period, useful indications on the protection of workers suffering from chronic diseases

The pursuit of a full and productive employment and decent work for all (Objective 8 of the 2030 UN Agenda for sustainable development) is hindered - in addition to the events that affect economic growth in various ways and in the absence of adequate support policies - in the specific needs relating to the employment, retention, or reintegration into work of vulnerable subjects. Among these, workers suffering from chronic diseases, recipients in the internal legal system of a fragmented and difficult to reconstruct regulatory framework, are assuming particular importance due to the lengthening of life, including working life.

Some recent case law developments, however, provide important indications with reference to an extremely important aspect: that of the inclusion of the condition of a worker suffering from a chronic diseaseunder the notion of disability for the purpose of applying anti-discrimination protections. Thanks to the dialogue with the Euro-unitary case law, in recent years a consolidated case law orientation has been formed which has recognized the application of the discipline against discrimination to workers suffering from chronic disease.

This orientation has developed, in a particularly significant way, on the sidelines of an intense case law controversy that is affecting the courts on the merit in relation to the indirectly discriminatory nature of the provision by the collective bargaining agreement of the same protected period for disabled and non-disabled workers (on this point see, amplius,E. Dagnino, Comporto, disabilità e disclosure: note a margine di una querelle giurisprudenziale, forthcoming in Argomenti di diritto del lavoro).

The circumstance is not accidental: both the case law lodging relating to dismissal for exceeding the maximum sick leave period and the extended interpretation of the notion of disability for the purpose of applying anti-discrimination protection start from some important principles of law affirmed by the HK Danmark judgment of April 11^th, 2013, then taken up by the subsequent case law of the Court of Justice of the European Union.

As for the first aspect – potential discrimination of sickness absence thresholds fixed in a uniform manner for disabled and non-disabled workers – the sentence, later taken up by Ruiz Conejero in January 18^th, 2018 in an even more similar case, recognizes that «compared to a non-disabled worker, a disabled worker is exposed to the additional risk of an illness linked to his/her disability» and, therefore, he/she «runs a greater risk of accumulating days of absence due to illness», with the consequence that the application of the same threshold constitutes indirect discrimination within the meaning of the directive, unless the provision «pursues a legitimate aim and [...] does not go beyond what is necessary to attain that aim».

Turning now to the profile of specific interest, the same decision - innovating on the precedents of the same Court - states that the notion of handicap relevant for the purposes of anti-discrimination protection "must be interpreted in the sense that it includes a pathological condition caused by a disease diagnosed as curable or incurable, if this disease leads to a limitation, resulting in particular from physical, mental or psychological impairments, which, in interaction with barriers of different nature, could hinder the full and effective participation of the person concerned in the professional life on an equal basis with the other workers, and this limitation is of long duration".

The affirmation of these legal principles by the CJEU has started the practice of challenging dismissals for exceeding the protected period where the worker has the opportunity to support, according to the particular rules of evidence, that at least part of the sick days which have led to exceeding the protected period are a consequence of his/her condition of disability. If the case law lodging formed as a result of this case law of the CJEU is characterized by a significant split between the majority orientation, which recognizes the indirect discriminatory nature of the contractual-collective provisions, and the minority orientation aimed at denying it, transversal and almost unanimous (contra App Venice December 21^st, 2022, Pres. Alessio) within the same vein it appears to be the linking of the conditions of workers suffering from chronic disease subjected to the judgment of the courts to the notion of disability, in application of the aforementioned notion of disability, the result of an interpretation adhering to the 2006 UN Convention ratified by the European Union.

Thus, various pathologies of chronic nature have been recognized as chronic diseases involving a worker's disability, including: phlebolymphoedema, gonoarthrosis, coxarthrosis, diabetes mellitus, sarcoidosis, arterial hypertension, intestinal endometriosis.

This, and it is important to point it out, regardless of whether the disability assessment was formally carried out by the social security institution, due to the objective relevance of the condition of disability for the purposes of applying anti-discrimination protections. Conversely, it was also noted that any formal assessment of disability for the purpose of applying the regulations on job placement or disability pursuant to Law no. 104/1992, cannot be considered decisive for the renewal of the condition of the chronically ill person with disability. Pursuant to the aforementioned bio-psycho-social notion of disability, it is in fact necessary to verify whether an effective compression of the possibility of fully participating in working and professional life is determined in the concrete case by the interaction between the subjective conditions of the worker and any barriers set up from the contextual conditions.

The systematic implications of the consolidation of this orientation clearly go beyond the limited confines of the dismissal for exceeding the protected period, and concern, among other profiles, the application of reasonable accommodation, the true cornerstone of the system of protections prepared by the Euro- unitary and internal legislator to ensure the participation of disabled workers in the labor market on an equal basis.

Below is a list in update of the relevant case law :

Trib. Pavia 16 marzo 2021, n. 876

App. Genova 21 luglio 2021, n. 211

Trib. Mantova, 22 settembre 2021, est. Gerola

Trib. Venezia 7 dicembre 2021, n. 6273

Trib. Vicenza 27 aprile 2022, n. 181

Trib. Milano 2 maggio 2022, est. Tosoni

Trib. Milano 18 maggio 2022, est. Moglia

Trib. Lecco 26 giugno 2022, est. Trovò

Trib. Milano 26 luglio 2022, est. Saioni

App. Milano 7 dicembre 2022, Pres. Mantovani

App. Venezia 21 dicembre 2022, Pres. Alessio

App. Napoli 17 gennaio 2023, n. 168