Employees’ silence regarding their disability cannot justify the reduction of the damages due in case of discriminatory dismissal: once the employer’s breach has been established, the employee cannot bear the consequences of the employer’s failure to verify the existence of a disability and to initiate the dialogue required to assess reasonable accommodations.

The Italian Supreme Court, with judgment no. 4623 of March 2, 2026, clarified that an employee’s silence regarding his/her disability cannot be invoked by the employer to reduce the damages due as a result of discriminatory dismissal.

The case concerned a dismissal for exceeding the sickness leave (so-called “periodo di comporto”, during which the employee is entitled to keep his/her job position and the duration of which changes accordingly to each NCBA) regarding an employee affected by a disability, without the employer first verifying whether the absences were linked to that condition or initiating the dialogue required to assess possible reasonable accommodations.

Although the employee had not expressly disclosed her disability, several elements known to the employer – including medical assessments declaring her unfit for night work and a previous hospitalization – could reasonably have alerted the employer to her health condition. Indeed, these circumstances constituted “warning signs” that should have led the employer to investigate whether the absences were linked to a disability and to interact with the employee to consider potential reasonable accommodations.

The Turin Court of Appeal declared the dismissal null and void because it constituted indirect discrimination: applying the ordinary sickness leave threshold to a disabled employee, without taking into account the increased risk of illness associated with the disability, can result in a disadvantage for a protected group. However, the Court of Appeal limited the damages to the legal minimum of five months of salary, arguing that the employee’s silence about her disability mitigated the employer’s fault.

The decision was, then, challenged by the employee before the Supreme Court.

The Court recalled the principles governing contractual liability under Article 1218 of the Italian Civil Code and clarified that fault is not a constitutive element of contractual liability but simply a criterion for attributing liability for the cause that prevented performance. The minimum indemnity provided under Article 18 of the Workers’ Statute has a function comparable to a contractual penalty linked to the employer’s business risk. However, once the employer’s breach has been established, the judge cannot reduce the compensation simply by assessing the degree of fault.

In the case at hand, the Turin Court of Appeal had already acknowledged that the employer could have identified the employee’s disability by exercising ordinary diligence and good faith. Having established that the employer failed to undertake the necessary checks and dialogue, it was therefore incorrect to attribute the consequences of that failure to the employee. The Supreme Court also emphasized that there is no obligation – nor even a burden – on the employee to spontaneously disclose sensitive health data. Rather, the employer must initiate a dialogue with the employee to verify whether the absences are linked to a disability and to assess possible reasonable accommodations. This employer-initiated interaction represents an essential step in the decision-making process preceding a dismissal for exceeding the sickness leave.

Key Action Points for Human Resources and In-House Counsel

  • Where the employer is aware, or could reasonably be aware, of elements suggesting a possible disability, it should verify whether sickness absences may be connected to that condition and interact with the employee to assess possible reasonable accommodations before proceeding with dismissal;
  • Employees are not required to spontaneously disclose their disability or other sensitive health data; however, once the employer initiates the necessary dialogue, the employee may be required to cooperate in providing relevant information;
  • When a dismissal is declared null for discrimination, the damages regime follows the principles of contractual liability: once the employer’s breach is established, the compensation cannot be reduced merely by assessing the degree of employer’s fault.

By Angelo Zambelli

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