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Conclusioni avvocato generale Rantos nella causa c-5/24, 3.4.2025
| | |Directive 2000/78/EC – sick leave period provided by the National Collective Agreement for the Tourism Sector – no distinction between disabled and non-disabled workers – indirect discrimination – not established – conditions – aim of ensuring employee availability to perform job duties – legitimacy of the aim – proportionality of the means – referral to the national court – case at hand.
Articles 1 and 2(1) and 2(2)(b) of Directive 2000/78/EC must be interpreted as not precluding the provisions of the Italian National Collective Agreement for the Tourism Sector under which an employee may be dismissed after 180 days of sick leave in any calendar year, with the possibility—upon the employee\'s request—of an additional 120-day period applicable only once. This applies even though such provisions do not distinguish between employees who are or are not disabled within the meaning of the Directive, provided that those provisions, while pursuing the legitimate aim of ensuring the availability of the employee to perform work duties, do not go beyond what is necessary to achieve that aim.
In the case at hand, the Advocate General emphasized that the assessment of proportionality is a matter for the national court. Furthermore, there would still be a conflict with Article 2(2) of the Directive if national law required the employer to ask the employee—before dismissing them for exceeding the permitted period of absence—whether the absences were related to a disability, and the employer, once informed, failed to adopt reasonable accommodations.