Italy – agediscrimination.info

Toffoletto e Soci

www.toffoletto.it

Overview

Article 3 of the Italian Constitution introduces a general principle of equality, which forbids every form of discrimination. This principle has been enacted and specified through ordinary law and particularly towards age discrimination, with art. 8 of the Legge 20 maggio 1970, n. 300 that prohibits discriminative behaviour during recruitment and the employment relationship. The implementation of the EU anti-discrimination Directive n. 78/2000 of November 27th 2002 with the Legge 9 luglio 2003, n. 216 furtherly improved and specified the protections against discriminatory behaviour. According to Italian law, 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 covered discrimination grounds 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 the persons, art. 8 of the Legge 20 maggio 1970, n. 300 and Legge n. 216/2003 are only directed towards protecting employees or self-employed workers during recruitment, the employment relationship and when the employee is dismissed. Legge n. 216/2003 is applicable to workers in both public and private sectors.

Discriminatory treatment does not amount to discrimination according to art. 3 of Legge n. 216/2003 in particular situations when:

– discriminating for these characteristics is essential for particular activities;

– the characteristics are relevant as regards the ability of the person to carry out duties in the police force, the penitentiary services, the aid services and the army;

– there are particular rules that provide for the requirement of a certain ability to carry out a specific job or rules that differentiate between teenagers, young people, elderly workers and workers with other persons on their behalf, dictated by the particular nature of the working relationship, work policy, the job market and professional development;

– religion or personal opinions are essential to carry out activities within religious organisations or other public or private entities;

– any other difference in treatment is justified by lawful purposes and pursued appropriately.

What enforcement/remedies exist?

There are no criminal penalties and there is no autonomous enforcing body: both the Art. 3 of the Constitution and the Legge n. 216/2003 are enforceable by Italian Judges. Specifically, the labour section of the Italian Judge will be competent on 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. No ceiling has been imposed on such compensation, but the Court, in quantifying the level of damages, 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.

How common are claims?

Notwithstanding the long standing tradition of our laws to protect against discrimination and the implementation of E.U. Directives, claims regarding discrimination issues are very rare and amount to less than 10% of all the claims.

What claims are most common and what are trickiest issues for employers?

At the present time, key age discrimination issues and hot topics we are advising clients on in our Country are:

– age based discrimination in cases of collective dismissals;

– E.U. law compliant recruitment procedures.

Are there any specific exceptions in your laws?

As outlined in the answer to question n. 2 and according to art. 3 of Legge n. 216/2003, do not amount to discrimination the different treatments related to characteristics which are covered by the Directive, when they are essential for the job, specifically considering armed forces and other public security functions or employment in religious or other organizations where personal beliefs are crucial for the execution of the job. There is a general rule (art. 3, para. 6) which states that do not constitute discriminative acts those that, while indirectly discriminatory, 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, comma 23 of Legge 8 agosto 1995, n. 335; therefore the Sistema retributivo, i.e. the pensionable earnings system) can be dismissed ad nutum, that means without giving any justifications.

Requirements for the Pensione di vecchiaia are met at 65 years for men and 60 for women (with 20 years of contributions) but decisions from the Constitutional Court (Corte costituzionale 11 giugno 1986, n. 137; C. Cost 27 aprile 1988, n. 498) and the Supreme Court (Corte di Cassazione 24 aprile 2003, n. 6535; Cass. 1 giugno 2006, n. 13045) ruled that women are nonetheless not dismissable ad nutum until they reach the same age set for men (although Corte di Cassazione 6 febbraio 2006, n. 2472 still requires women to opt in order not to be dismissed before the age of 65), while still being allowed to choose to file for the Pensione di vecchiaia before.

Please note that employees in the Public Administration are automatically discharged upon reaching the maximum age requirement, which is set at 65 years (army forces officials are only allowed to work until a lower age according to their rank). Civil Public Administration employees can opt to work for two additional years after reach of the maximum age requirement.

Interesting cases

There are some decisions of the Sezione Lavoro del Tribunale di Milano regarding collective dismissals, where the choice of the employees to be dismissed was based on the possession of the requirements for the old age pension (see answer to question above) or on the fact that the employees were close to reaching those requirements. In one case (Tribunale di Milano, sentenza del 7 gennaio 2005) the judge stated that since the introduction in the Italian legal system of the non-discrimination principles regarding the age, adopting such criteria to choose employees to be dismissed would determine a disadvantage for older employees, closer to pension than younger employees, amounting to indirect discrimination.