Italy, Tribunal of Pavia, Manara v. INPS, Order of 9 September 2009
Deciding bodies and decisions
Tribunal of Pavia (first instance court)
Discrimination (on grounds of disability) by association - primary carer - social rights
Summary Facts Of The Case
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  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.
In 2008, the CJEU interpreted Directive 2000/78 as also encompassing discrimination by association. In 2009, an Italian court of first instance (the Tribunal of Pavia) interpreted the national legislation implementing the Directive (which did not contain any explicit reference to discrimination by association) in conformity with the judgment of the CJEU of 2008. Accordingly, the Tribunal of Pavia din not apply to the specific case pending before it another national legislation, whose application had resulted into discrimination by association.
Sources - ECHR
Sources - CJEU Case Law
Case C-303/05 Coleman v. Attridge Law & Steve Law  ECR I-560303;
Case C-180/95Nils Draehmpaehl v Urania Immobilienservice OHG
Sources - ECtHR Case Law
Sources - Internal or external national courts case law
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.