The Italian Supreme Court on dismissal for “Sexting”

The recent Italian Supreme Court ruling (31790/2023) has raised important issues concerning “sexting” in the workplace, offering a critical reflection on the rights and duties of employees and employers with regard to sexual harassment.

The story: sexting targeting female colleagues

The case stems from two female colleagues’ reports of repeated inappropriate approaches by a colleague through messages with sexually explicit content, a practice known as “sexting“. The employer intervened with a formal warning, but the employee ignored this warning and persisted in the harassing behaviour during working hours. The employer, having failed to comply with the warning to stop the harassing behaviour, dismisses the employee.

The dismissal order is appealed unsuccessfully, as the court hearing the case rejects the worker’s appeal. Challenging the first judge’s decision, the employee appealed to the Court of Appeal, which, finding that the testimonies taken represented the unease, annoyance and fear of the two employees “as a result of the appellant’s repeated and unwelcome conduct”, considered the disciplinary measure of expulsion to be lawful, since it was proportionate to the facts alleged.

The victims, upset and undermined in their safety, see their warning call reach the Italian Supreme Court. As a matter of fact, an appeal is brought before the Court of Cassation against the sentence issued by the lower court, on the grounds of formal and procedural defects, contesting, in particular, the violation of the rules protecting the right not to be arbitrarily dismissed.

Harassment, relapse and disciplinary dismissal

The analysis shifts to the concept of sexting, highlighting how the Italian Supreme Court has carefully assessed this practice and other sexually harassing conduct.

Article 26 of Italian Legislative Decree No. 198/2006, the Equal Opportunities Code, is the focus of this reflection, offering an overview of the different forms of harassment and sexual harassment. Harassment is defined as unsolicited conduct aimed at violating the dignity of workers by creating a hostile environment.

The Supreme Court (31790/2023), accordingly rejected the employee’s appeal, confirming the legitimacy of the dismissal for just cause. The Cassation’s reasons focused on the employee’s persistence in committing damaging acts despite the warning received.

The seriousness of the conduct, the breach of the fiduciary relationship, and the recidivism irreparably compromised decorum and propriety in the work context, justifying the disciplinary dismissal.

The orientation of the Italian Supreme Court (Cass. Civ. 31790/2023)

This Supreme Court ruling (31790/2023) emerges as an urgent and incisive warning against harassment in the workplace. Strongly reaffirming the principle of “zero tolerance“, the Court emphasised the need to safeguard the dignity and safety of workers. The moral and legal imperative to create respectful and safe working environments becomes clear, and the Supreme Court‘s jurisprudence emphasises that harassment will not be tolerated.

The effectiveness of this judicial decision lies in the direct invitation to companies to implement strict harassment prevention and management policies. With its ruling, the Italian Supreme Court sends a clear message: the defence of employees’ dignity is an inalienable priority.

In this context, the ruling represents a significant step towards building a fairer and more respectful working environment. Companies are called upon to take concrete measures to ensure that employees can perform their duties without fear of harassment or intimidation. Ultimately, the Italian Supreme Court lays the foundations for a cultural change, calling on all parties involved to contribute to a fairer working world free of discrimination.