An employee challenged the decision of the   National Institute of Social Security (INPS) which determined his ranking for   the purpose of an internal promotion. The complaint focused on the fact that   INPS had not taken into account, for the purposes of determining his length   of service, a period of an unpaid leave of six months. The leave was   necessary for him to take care of the mother, who suffered from severe   disability as defined in domestic law (cf.  Article 3 of Law 104/1992). The   failure to take into account this period resulted into a lower score than   what would have been given calculating the leave towards his seniority. With   its order, the Tribunal of Pavia upheld the applicant’s request for   provisional measures. It observed that the domestic provision (Art. 4,   paragraph 2 of Law 53/2000) which expressly excluded the computability   towards seniority of the period of unpaid leave taken by the employee to look   after a disabled relative amounted to direct discrimination, and that it was not   supported by any legitimate objective. Therefore, the provision had to be   disapplied, and INPS was ordered to upgrade the position of the claimant   accordingly.

Disapplication was granted for a breach of the domestic statute transposing Directive 2000/78 (ie, the D.lgs. 216/03). Now, the Directive does not contain any explicit reference to the situation where someone is discriminated against “by association” with one person of a disadvantaged group. Nevertheless, in its judgment in Coleman v. Attridge Law & Steve Law [2008] ECR I-560303 (http://curia.europa.eu/juris/liste.jsf?language=en&num=C-303/06), the CJEU interpreted Directive 2000/78 to the effect that direct discrimination on grounds of disability is not limited to treatment against disabled people, but can also concern their carers. The Tribunal of Pavia referred to Coleman, and considered that the employer is unlawfully discriminating an employee if s/he puts the latter in a disadvantageous position, as a consequence of the disability of the person of which the employee is the carer. 

The Tribunal of Pavia drew inspiration from the reasoning of the CJEU to extend the application of the rules on direct discrimination to treatment of persons associated with a disabled person. It must be noted that neither Directive 2000/78 nor the national legislation implementing it (D.lgs. 216/03) contain indications in that sense. Therefore, the interpretation adopted by the Tribunal was picked pursuant to an exercise of consistent interpretation that did not limit itself to conform domestic law to EU provisions, but took into account the case-law of the CJEU, and in particular a decision that displays a sound degree of purposive interpretation. Through the setting aside (disapplication) of the domestic provision excluding the relevance of unpaid leave the Tribunal adjusted the domestic regime without having to resort to the Constitutional Court. Incidentally, it must be recalled that the Constitutional Court had already pronounced on the right of sons to make use of extraordinary paid leaves for the care of the disabled person, along with parents and brother (judgment no. 19/2009 of 30 January 2009:  http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2009&numero=19). The Constitutional Court had deemed it unfair to exclude sons from this right. However, whereas this decision is based on the equality between the close relatives of the disabled, there is no discrimination entailed. In the Pavia proceedings, instead, the issue of equality arose between workers and workers who had to take care of a disabled person: in this sense discrimination was ruled by association with a member of the protected group, but it was still considered direct.