The following article, written by Antonio Cazzella and published on Diritto Bancario (Feb 10, 2025), examines the legitimate use of leave under Law No. 104/1992, as governed by Article 33, in light of the most recent rulings of the Court of Cassation.
1. Purpose of Law 104/1992 and Leave Under Article 33
Law No. 104/1992 aims to ensure adequate support for both disabled individuals and their family members, who are often required to provide care.
Among the issues addressed by case law is the method of utilizing certain benefits granted to family members of disabled workers, particularly the conditions for legitimately taking three days of paid monthly leave to assist a severely disabled person who is not hospitalized full-time (Article 33).
While this article does not provide a comprehensive analysis of all the necessary requirements for such leave, it is important to highlight several significant legislative and judicial developments following Law 104/1992. These include Law No. 76/2016 (the so-called “Cirinnà Law”) and Constitutional Court ruling No. 213/2016, which extended benefits to civil union partners and cohabitants of disabled persons. More recent legislative interventions, such as Legislative Decree No. 105/2022 and Legislative Decree No. 62/2024, have not altered the underlying principles established by case law.
2. Case Law on Leave Under Law 104/1992
With regard to the legitimate use of leave under Article 33 of Law 104, it is noted that the statute does not specify the precise nature of the assistance to be provided (e.g., nursing care or accompaniment, as indicated in Cass. No. 25290 of August 24, 2022). The purpose of the law is to ensure, as a priority, continuity in the care and assistance of the disabled person (Cass. No. 26417 of October 10, 2024).
However, this right is not without limitation. Abuse of this leave, including its use for purposes unrelated to caregiving, may constitute a disciplinary offense, potentially leading to dismissal for just cause. The extent of the employee’s engagement in caregiving activities can serve as an indicator of such abuse.
The courts have clarified that leave under Law 104/1992 is granted on a daily basis, not on an hourly or minute-by-minute basis. Consequently, “family assistance can be provided in various forms” (Cass. No. 26417/2024).
An employee may engage in activities related to the disabled person’s interests, such as grocery shopping or consulting with professionals. However, the time dedicated to caregiving cannot be negligible, given that this benefit imposes an organizational burden on the employer, justified only by legally recognized and socially protected caregiving needs (Cass. No. 13274 of May 14, 2024).
Since the leave imposes both an organizational burden on the employer and a financial cost on the social security system, the absence from work must be directly linked to caregiving. Failure to meet this requirement constitutes a violation of good faith and fair dealing in contractual performance, amounting to improper use of the right (Cass. No. 12679 of May 9, 2024).
The courts have also emphasized the social harm caused by employees who use caregiving leave, even partially, for personal reasons, thereby shifting the cost onto the public. Employers initially pay for such leave but are later reimbursed by the social security institution, which also covers related contributions. The employer must reorganize work schedules to accommodate the employee’s absence, potentially increasing the workload for colleagues (Cass. No. 7301 of March 13, 2023).
From a disciplinary perspective, the key issue is assessing the severity of the employee’s breach of good faith and fair dealing, irrespective of whether the conduct is classified as “abuse.” This principle aligns with Article 54 of the Charter of Fundamental Rights of the European Union, reflecting its growing relevance in European case law (Cass. No. 12679/2024).
Furthermore, engaging in unpaid work for third parties while on caregiving leave does not preclude disciplinary liability. The intent of the law clearly indicates that such leave is improperly used if it is consistently dedicated to unpaid activities unrelated to the disabled person’s interests.
3. Procedural Considerations
It is well established that the trial court must determine whether an employee has used leave inconsistently with the statutory purpose and requirements (Cass. No. 26417/2024). The extent to which the employee’s actions diverge from the purpose of the leave is a factual assessment not subject to review by the Court of Cassation (Cass. No. 12679/2024).
Moreover, regarding the inadmissibility of factual reexamination at the appellate level, the trial court’s determination of the proportionality of disciplinary sanctions is generally non-reviewable. It may be challenged only if the ruling lacks any reasoning or contains manifestly inconsistent or incomprehensible arguments. To successfully contest such an assessment, the appellant must demonstrate that an omitted consideration would have definitively altered the outcome (Cass. No. 6468/2024).
4. Final Considerations and Recent Supreme Court Decisions
To assess the legitimate use of leave under Law 104/1992, the actual manner in which caregiving is performed must be considered.
The issue remains highly relevant. In a recent synthesis of existing principles, the Supreme Court ruled that abuse of caregiving leave cannot be assessed solely on a quantitative basis (i.e., the amount of time spent) but must also consider the qualitative aspects and related caregiving activities (Cass. No. 1227 of January 17, 2025).
The Court has also upheld the legitimacy of employer investigations conducted through private agencies, as such inquiries do not pertain to the employee’s work performance but rather to the use of time freed from work obligations, which must be dedicated to addressing the needs of the disabled person (Cass. No. 2157 of January 30, 2025).
In one case, an employee was dismissed after an investigation revealed that he had spent half of his approved leave hours cycling in professional sports attire. The trial court emphasized that the misconduct was characterized by “systematic and premeditated repetition,” as evidenced by the frequency and consistency of the infractions (Cass. No. 2157/2025).
Thus, judicial scrutiny of caregiving leave under Law 104/1992 continues to evolve, reinforcing the necessity of strict compliance with its intended purpose.
