Dismissed for Being Sick: More Common Than You Think
It happens more often than you'd imagine: an employee is absent for extended periods due to illness. The employer, tired of managing the absences, decides to dismiss them — not for exceeding the protection period, but citing "poor performance." A convenient pretext, frequently used. And frequently illegal.
Article 2110 of the Civil Code: The Protection Period
Italian law provides a clear protection tool: Article 2110 of the Civil Code establishes that an employee absent due to illness cannot be dismissed until the protection period (periodo di comporto) set by the applicable collective agreement has elapsed.
The protection period varies by CCNL and seniority: it generally ranges from 180 days to one year. Until that deadline, the employee's position is protected — period.
The Supreme Court's Position: Illness Is Not Poor Performance
Some employers try to circumvent this protection by framing the dismissal as a "poor performance" dismissal. The logic seems plausible: the employee was absent a lot, production fell, performance was below expectations.
The Supreme Court has dismantled this argument: if the cause of the performance drop is illness, there is no disciplinary poor performance.
Poor performance that justifies dismissal must be voluntary, systematic, and comparable negatively to colleagues. If the shortfall is caused by health problems, it doesn't qualify as grounds for dismissal.
How to Defend Yourself
- Check how many days of protection period remain under your CCNL
- Keep all medical certificates delivered to the employer
- If you receive a dismissal letter, you have 60 days to contest it in writing
- In the following 180 days, file a claim with the employment tribunal or start conciliation
Contact a lawyer or union immediately: timing is crucial in dismissal disputes.
When Is Dismissal for Poor Performance Legitimate?
Only when the productivity drop is voluntary, systematic, negatively comparable to colleagues, and not attributable to external causes (illness, company organisation, inadequate tools). In short: when the employee could work better but chooses not to.