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Dismissal in case of refusal to undergo medical examination

Published in: Employment law
by Debora Teruggia
Home > Dismissal in case of refusal to undergo medical examination

The Italian Supreme Court, Labor Section, in an order dated July 13, 2022 No. 22094, ruled on the legitimacy of the dismissal for just cause of a worker who failed to undergo a medical examination required by the company for a change of duties. In this article, we will discuss:

The case: worker fired for not undergoing medical examination

This case concerns a worker who refused on two occasions to undergo the mandatory medical examination imposed by the employer in order to put in place a change of duties: in the first case because she complained about the unsuitability of the place where the examinations were held (meeting room), while in the second case, alleging the illegitimacy of the change of duties, she did not show up on the day set for the examination.

The employee was thus dismissed for just cause because her refusal to submit to the medical examination – from the employer’s point of view – was deemed unjustified. Specifically, the employer considered this refusal to be illogical mainly because the request for a medical examination arose from a legal obligation. Both the Court of First Instance and the Court of Appeals agreed with the employer. However, the employee still decided to submit the case to our Supreme Court of Cassation.

Before analyzing the Supreme Court’s reasoning, however, let’s see what the Law says about refusing to submit to a medical examination.

Occupational health and safety obligations

Article 41 of the so-called “TUSL Testo Unico in materia di Sicurezza sul Lavoro” (Legislative Decree No. 81/2008) requires the employer to subject the employee to medical examinations in the event of a change of duties.

Article 20 of the same Decree also requires the employee to undergo it, with refusal being considered justified for objective reasons only. The medical assessment is indeed aimed at verifying the employee’s suitability to perform the new and different duties assigned.

Any failure to call for the medical examination would therefore result in a severe violation of Law by the employer. The employee, however, challenging the measure before the Supreme Court, had held that the judges of first and second instance had failed to assess, on the one hand, the subjective element, namely good faith in refusing to undergo the medical examination, and, on the other hand, that the sanction of dismissal was in any case disproportionate to the conduct complained of.

The view of the Supreme Court (ord. July 13, 2022 nr. 22094)

In the employee’s opinion, since the change of duties was unlawful, the refusal to undergo a medical examination would also have been justified. The refusal, in civil law, would thus have been assimilated to the institute of the exception of non-performance. The institute represents a form of self-defense for parties in contracts for consideration.

As a matter of fact, when a party sees its right violated it can refuse to perform. Article 1460 of the Italian Civil Code provides that “in contracts for consideration, each of the parties may refuse to perform his obligation if the other fails to perform or does not offer to perform his own at the same time, unless different terms for performance have been fixed by the parties or result from the nature of the contract. However, performance may not be refused if, having regard to the circumstances, the refusal is contrary to good faith.”

As such, the employee had refused to show up for a medical examination, complaining of demotion, but the supreme court had occasion to clarify that “The employee’s reaction is in no way justifiable under Art. 1460 cc because, on the one hand, the employer had merely adapted its conduct to the requirements imposed by law for the protection of the physical conditions of employees in the performance of their assigned duties and, on the other hand, the employee could well have challenged any outcome of the examination, if not shared, or the alleged unlawful demotion, before the competent bodies”.

The court’s decision then focused on the meaning of the exception of non-performance under Article 1460 cc. The rule covers only cases of employer conduct and demands such as to irreparably affect the vital needs of the employee.

The worker's "good faith" refusal

In this case, the employer’s request for a medical examination was justified by the TUSL and the refusal that followed was so serious as to legitimize a dismissal for just cause: “In the case de quo[ed. the court] considered proven the illegitimacy of the employee’s omissive behavior, which is also punishable by criminal sanctions, and the purpose of the employer’s conduct, aimed at prevention with respect to safety and healthiness in the workplace to which Article 41 of Legislative Decree No. 81 of 2008 is imprinted”.

Even if the worker had been in good faith, her actual intention (so-called subjective element) could not have had any relevance in the face of the precepts of the TUSL, which are also criminally sanctionable.

Even if the employer’s change of duties had been unjustified or unlawful, the employee could still have presented herself for a medical examination and subsequently challenged the employer’s behavior before the competent authorities. The tools to protect the employee are there and they are many: as professionals active in the field, we at Canella Camaiora Law Firm are also and especially at your disposal to handle complex situations.

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Publication date: 17 November 2022
Last update: 4 January 2023

Debora Teruggia

Laureata presso l'Università degli Studi di Milano, praticante avvocato appassionato di Diritto del Lavoro e Diritto di Famiglia.
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