With ruling no. 14254 of 24 May 2019, the Supreme Court of Cassation recently confirmed the legislative principle according to which – in the context of a collective dismissal procedure – it is not possible to dismiss a percentage of female employees higher than the one existing in the area subject to the reorganisation.
Just a brief overview concerning collective dismissal procedure under Italian Law
By way of introduction, please note that under Italian Law, pursuant to Law no. 223/1991, collective dismissal occurs when a company that employs more than 15 employees intends to dismiss more than 5 employees within a maximum period of 120 days.
The collective dismissal procedure involves a strong dialogue with the Union Representatives and the the relevant Public Authorities, which may last up to 75 days.
In particular, Article no. 5 of Law no. 223/1991 provides that the selection of employees to be made redundant within a given group subject to reorganisation, should be made on the basis of the “selection criteria” laid down in collective agreements or, alternatively, as provided by the same Law, to be applied in combination with each other:
- family burden;
- length of service;
- technical, productive and organisational needs of the company.
Further to the mentioned principle, the same Article no. 5 L.223/1991 provides that the company is not entitled to dismiss a percentage of female employees exceeding the the percentage employed with regard to the tasks taken into consideration for the purpose of the reorganisation.
The case analysed by the Court
A female employee challenged in Court the dismissal imposed to her in force of a collective dismissal procedure and complained of the discriminatory nature of the conduct held by the company which had breached the “selection criteria”, by reducing the percentage of female employees from 1/3 to 1/6 of the overall company’s workforce.
The statements of the Court
Examining the present case, the Court of Cassation, considered that, also in the context of a collective dismissal procedure, the company has to prevent the so called “indirect discrimination” (when an apparently neutral provision or practice puts persons of one sex at a particular disadvantage compared with persons of the other sex).
For this purpose, according to the Court, within the scope of the tasks subject to reorganisation, the employees to be dismissed must be chosen in such a way as to ensure:
- balance between workers of the two sexes and
- proportionality of the quota of female employees in comparison to the overall company’s workforce.
To this end, the ruling states that a specific comparison between the number of workers of the two sexes before and after the dismissal is not necessary, being instead sufficient:
- firstly, the verification of the percentage of working women in the department subject to reduction and
- thereafter, the dismissal of a number of employees where the female component must not exceed the previously determined percentage.
In light of the abovementioned principles, the Court ascertained that, in the present case, the overall workforce employed in the administration department was equal to 6 men and 3 women, with a percentage of females equal to 33.33%.
Therefore, the company proceeded to dismiss 2 women and 1 man, so that the percentage of women dismissed was equal to 66.66% of the overall workforce employed (thus, twice the abovementioned percentage of women assigned to the department subject to reorganisation).
On these assumptions, the Supreme Court declared the unlawfulness of the female employee’s dismissal as discriminatory, because the company broke the proportional balance existing between workers of the two sexes.