When judicial claim is raised in order to obtain compensation under Article 2087 of the Italian Civil Code for damages caused by the performance of work in excess of reasonable tolerability, the employee must prove the performance of the service in a harmful manner and the connection between the work thus carried out and the damage suffered, whereas the employer must prove that, on the contrary, the service was performed in a reasonable and tolerable manner. The case takes its starting point from the case of a worker who claimed to have worked at an unsustainable pace, due to the lack of any planning and distribution of loads because of the shortage of personnel, in order to obtain compensation for the biological damage suffered due to violation of Article 2087 of the Italian Civil Code. More specifically, the employee, as a result of the said working conditions, complained that he had developed illnesses attributable to the employer's unlawful conduct: first, in fact, he had suffered depressive symptoms, then, he had suffered a heart attack. In the first and second instance, the employee's claims were dismissed due to his failure to prove the violations charged against the employer. In its Order no. 34968 of Nov. 28th, 2022, which is the subject of commentary, the Supreme Court, on the other hand, found the employee's claim for damages to be well-founded. In particular, the Court noted that the action brought by the plaintiff pursuant to Article 2087 of the Civil Code, was aimed at asserting contractual type liability related to the employer's failure to take the necessary measures to protect the physical integrity and moral character of the employee. On the basis of this assumption, the employee suing for compensation for said damage must prove the existence of the latter, the harmfulness of the working environment and the causal link between the two elements. It should be noted, however, that in specific cases where there is a possible "overwork" damage, in which the harmfulness complained is involved in the performance of the working activity itself, such relevant burden of proof shall be re-evaluated. Thus, in cases where compensation is sought for damage resulting from work activity, it is necessary to consider the employer's failure to fulfil its obligation to ensure that the performance of the service does not cause harm to the employee due to psychophysical wear and tear that exceeds that inherent in the performance of that activity. Therefore, in such cases, the employee must prove that the performance of the work activity required of him by the employer exceeded reasonable tolerability, as well as the existence of the link between the harm suffered and the service thus performed. On the other hand, the employer, who must ensure that the activity is to be carried out in a manner that does not harm the employee's physical integrity and moral character, will be required to prove that the workloads complained of are normal, congruous, and tolerable, or that there is a different cause that makes the harm to the employee not attributable to him.
