With regard to the protection of disabled employees in the event of dismissal for exceeding the grace period, it is up to the national court to judge the appropriateness of domestic legislation in relation to EU law. In its judgment of September 11, 2025, in Case C-5/24, the Court of Justice of the European Union clarified that it is for the national court to verify the conformity of national rules on dismissal for exceeding the grace period for disabled employees with European law. The case originates from an appeal lodged by a disabled employee who was dismissed for exceeding the grace period, in this case six months in a calendar year, pursuant to article no. 173 of the NCLA for Tourism Sector, applied to the employment relationship. The employee challenged the legitimacy of the dismissal, considering it discriminatory, as the aforementioned provision does not differentiate between disabled and non-disabled employees, establishing the same period of sick leave for both categories. The Court of Ravenna, hearing the case, suspended the judgment and asked the Court of Justice for a ruling on the conformity of the national law with the European anti-discrimination provisions laid down in Directive 2000/78/EC and, in particular, on the possible indirect discrimination resulting from the uniform sick leave limit for all employees and on the need for different treatment for disabled employees. The Court of Justice first recognized that disabled employees, who are presumably more likely to be absent from work for long periods, may be at risk of exceeding the limit more frequently, thus suffering a disadvantage, but that the difference in treatment between employees is legitimate only if it is supported by an abstractly legitimate and proportionate aim. The Court recognized that the assessment of the adequacy of domestic rules in relation to the provisions of the aforementioned Directive is a matter for the national court hearing the specific case, which must determine whether the employer has adopted reasonable solutions which, without constituting an excessive burden, can in some way enable the employee to remain in employment. The Court of Justice therefore considered that, although the Italian legislation in question lacks comprehensive rules on the specific issue of sick leave in the event of disability, it is not, in itself, contrary to European anti-discrimination principles. It follows that it will therefore be up to the national court to assess whether, in practice, the national rule complies with European anti-discrimination legislation.
2026 - Morri Rossetti
