This summary of age discrimination law in Italy has been prepared by Toffoletto De Luca Tamajo e Soci, the Ius Laboris member for Italy: www.toffolettodeluca.it

Overview

Article 3 of the Italian Constitution (Constitution) sets out a general principle of equality, which prohibits all forms of discrimination.

Article 15 of the Workers' Statute, dated 20th May 1970, states that any agreement or act directed to: (a) subject the employment of employment to an individual on condition that the individual is of a certain age or (b) dismiss an employee, discriminate him/her in the assignment of jobs or levels of employment, in a transfer, in disciplinary measures, or to cause him/her damages for reasons related to age, is null and void.

The EU Framework Directive no. 78/2000 of November 27th 2002 which was implemented by Legislative Decree no. 216 of 9th July 2003 introduced further protections against discrimination. In particular, the law distinguishes between direct and in direct discrimination.

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 grounds for discrimination mentioned 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?

In additional to the general protection granted by Article 3 of the Constitution which covers all persons, the Workers' Statute covers all employees and the Legislative Decree covers the self-employed and job applicants during the recruitment stage, as well as employees throughout the employment relationship and on dismissal. The Legislative Decree is applicable to workers in both the public and private sectors.

WHAT ENFORCEMENT/REMEDIES EXIST?

Article 3 of the Constitution, Article 15 of the Workers' Statute and the Legislative Decree are enforceable before the Court. Specifically, the Court can hear disputes arising with regard to employment relationships. The Court may order:

• to employer to pay damages;

• to stop the discriminatory behaviour; or

• to develop a plan to remove the discriminatory practices.

In some cases, the Court may publish the decision in a national newspaper.

Compensation is unlimited, but when quantifying damages, the Court will bear in mind whether the discrimination by the employer was 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.

Generally, the burden of proof (the obligation to prove the case to the court) either lies with the person making the claim or is split between claimant and employer. The question of who needs to prove the case can make a big difference to the outcome. Often, employees will not have access to a great deal of company information, for example, thus making it harder to prove fault.

In discrimination cases an attenuation of the ordinary probative regime is provided by Italian law on the claimant, in line with the provisions of art. 19 of the EC Directive n. 2006/54 (as interpreted by the EU Court of Justice 21 July 2011, C-104/10). The employee must provide facts relating to the discriminatory behaviours complained of, as long as they are suitable for establishing, in precise (i.e., determined in their historical reality) and concordant (i.e., based on a plurality of known facts converging in the demonstration of the unknown fact) terms, the presumption of the existence of discriminatory acts, pacts or behaviours. The claimant may also use statistical evidence. If these elements are provided, the employer has the burden to refuting such evidence and prove that no discrimination occurred (i.e., that the act, pact, or behaviour was objectively justified by a legitimate end and pursued with legitimate and appropriate means).

WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?

Claims regarding age discrimination issues are very rare and amount to less than 10% of all claims.

ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?

Discriminatory treatment may not amount to discrimination.

As per Article 3 of the Legislative Decree, in particular situations when the act can be objectively justified by a legitimate end and pursued with legitimate and appropriate means, the alleged act may not be deemed discriminatory. Some examples of when an exemption may apply include the following:

• discriminating for these characteristics is essential for particular activities;

• there are particular rules that provide for special conditions to access a job and the training, differentiating among teenagers, young people, elderly workers, according to the particular nature of the working relationship, work policy, the job market and professional development;

• there are particular rules that provide for minimum age conditions and professional experience or seniority to access a job or to have some advantages for the job;

• there are particular rules that provide for hiring up to a maximum age, based on the training required for the job to be performed or to have worked for a certain period before retirement;

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

RETIREMENT AGES

The age that employees are able to access old age pension benefits (“Pensione di vecchiaia”) depends on the average life expectancy determined by the National Statistics Institute, which is also validated by EU authorities. For 2023 and 2024, the retirement age for old age pension is 67 years for men and women.

Employees may be entitled to retire before meeting the above age requirement if specific conditions are satisfied.

Where an employee is eligible for old age pension benefits (“Pensione di vecchiaia”), an employer is entitled to dismiss the former without giving notice or reason for dismissal. In this case, ordinary protection against unfair dismissal does not apply. Notwithstanding this, employees and employers may agree to continuous employment of the former up to 70 years old, in which case, employees would continue to be protected against unfair dismissals.

INTERESTING CASES

It is common for employers to agree with unions the criteria in which employees are assessed against when carrying out a collective redundancy exercise. Employers and unions are free to decide the criteria provided that they are (i) objective and (ii) non-discriminatory. Some decisions by the Milano Employment Court and the Supreme Court concluded that if one of the criteria is based on the fact that an employee meets the requisites of retirement, making an employee redundant based on this consideration only would be discriminatory. In one case the judge stated this approach would disadvantage older employees closer to pension age than younger employees, and therefore would amount to indirect discrimination.

Another interesting case dealt with “on call” employees. Under an “on call” employment arrangement, employees make themselves available for employers periodically, as per the discretion of the employer. Italian law permits employers to enter into these “on call” arrangements if the employee is under 24 or over 55 years of age. Although the Milan Court of Appeal (COA) decided against this, holding that dismissing employees who have reached the age of 25 is discriminatory, the decision in another Supreme Court decision in February 2018 held up its decision in line with the Italian law. It stated that Article 21 of the EU Charter of Fundamental Rights, as well as Article 6, par. 1 of Directive 2000/78/EC (which regulate equal treatment in matters of employment and working conditions) must be interpreted in the sense that that they do not prevent a provision authorising the employer to sign “on call” employment contracts with employees below 25 and to dismiss employees who have reached 25 years of age. The reasoning of the Supreme Court was because this provision had the effect of pursuing a legitimate purpose of labour and labour market and therefore, did not amount to age discrimination.

Recently, the European Court of Justice dealt with the possibility for Italian law to set age limits to enter certain professions. Specifically:

-        one case was related to the age threshold (maximum 50 years) to access the public exam for public notaries;

-        another case was related to the age threshold (maximum 30 years) to access the public exam for commissioner positions of the Italian State police.

In both cases, the European Court of Justice ruled that is possible to establish an age threshold, not to be considered discriminatory, only were the ratio behind is supported by objective reasons to be verified by the judge on a case-by-case basis.

In the first case, the objective reason identified by the Italian government was the aim to guarantee some sort of stability in the length of services for the notary profession before the pension age. Keeping in mind that in Italy a notary public can practice until is 75 years old, the European Court of Justice deemed excessive, and thus discriminatory, the 50-years old threshold to access the public exam.

In the other case, the objective reason identified was the necessity for police commissioner to be physically capable. Also in this case, the European Court deemed excessive, and thus discriminatory, the 30-year threshold to access the exam. After this judgement, the Italian Constitutional Court ruled that the same 30-years old threshold for the recruitment of state police psychologists was discriminatory, taking into account that they are not called upon to perform services of an operational nature.