With judgement no. 28926 of last November 12th, the Court of Cassation, directing an arisen conflict of case-law among the trial judges, has established that the invalidity of layoffs caused by marriage, imposed by Art. 35 of Legislative Decree 198/2006, so called code of equal opportunities for men and women), is only limited to female workers, and is therefore not extendible to men. Given that, this legislation does not constitute an unjustified inequality of treatment, from the moment that it responds to “a dissimilarity of treatment justified with reasons, not regarding the gender of the subject carrying out the work, but the protection of maternity, constitutionally guaranteed to the woman, as well as to appoint the female worker the same rights as a male, in compliance with the fulfilment of their essential role in the family, even in the assurance ‘of the mother and child’ of ‘special appropriate protection’ (Art. 37 Constitution, clause 1)”.
The case referred to the Supreme Court concerned the appeal, by a male worker, of his dismissal for less than one year prior to the request for marriage banns, which he assumed was invalid on the basis of gender discrimination, with the extensive application of Art. 35, cit., which provides, inter alia, that “1. All forms of provision, contained within the individual and collective contracts, or in regulations, which provide for the resolution of employment contracts of female workers in consequence of marriage, are invalid. 2. Dismissals issued as a result of marriage are to be deemed as invalid. 3. Except what is provided for in clause 5, it is assumed that the dismissal of the female employee in the period of time from the day of the marriage banns, then followed by the ceremony, to one year after the ceremony itself, was ordered for marriage reason”.
In recent years, the assumption of the claimant to the Court of Cassation found the adhesion from one part of the case law (incl. Court of Milan 3/6/2014 and Court of Rome 16/1/2017), which, under the interpretation of the national legislation compliant to the community legislation on equal treatment of men and women, and going beyond the information provided in Art. 35, considered the dismissal for the employee’s marriage as invalid.
The recent verdict from the Supreme Court, in rejecting the employee’s appeal, underlined not only that “the legislation, not by chance found in the code of equal opportunities, needs to be read into, for an appropriate understanding, as a haven for the constitutional protection of the rights of the female worker” but also that, “the law was issued according to the common procedure for dismissals of female workers due to their marriages”. (CP)
