Marco Peruzzi

Unfair dismissals and burden of proof in legislative decree 23/2015: flawed attempts and missed opportunities

  • Abstract

Informations and abstract

Keywords: Unfair Dismissal; Disciplinary Dismissal; Discriminatory Dismissal; Burden of Proof; Contract with Gradual Protections.

The regulation of the «contract with gradual protections» requires a renewed analysis of the burden of proof in unfair dismissal disputes. Besides a clear normative change as regards disciplinary dismissals, one can detect an equally significant lack of intervention in this field with respect to discriminatory dismissals. In either case, the analysis of legislative decree 23/2015 provides an opportunity to assess, on the one hand, the current positioning of the burden of proof on the employee to the aim of accessing reinstatement, on the other hand, the current positioning of the legal framework on dismissals between a reconstruction in terms of speciality and one in terms of accordance with private law concepts. The impact of this normative framework is finally assessed against the specific features of procedure rules applying in labour litigations, taking into account the exclusion of applicability of the so-called «Fornero procedure» and the possibility of a conciliation offer for the employed from 7 March 2015 onwards.

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