Unsuitable premises and the right to refuse work: legal protections against retaliatory dismissal
The Supreme Court of Cassation, with ordinance no. 3145 of February 12, 2026, has upheld the nullity of a dismissal issued to an employee who refused to work in premises that were unsuitable and hazardous to health. The ruling clarifies that refusing to perform professional duties constitutes a legitimate exercise of the "exception of non-performance" (Art. 1460 c.c.) when the employer breaches their fundamental safety obligations under Art. 2087 of the Civil Code. Regarding the burden of proof, the Court established that while the worker must only allege the existence of a risk, the employer must demonstrate the actual suitability of the work environment. This decision reinforces protections against retaliatory termination by identifying dismissals based on absences provoked by the employer's own failure to provide safe working conditions as null and void.
The Supreme Court of Cassation, in ordinance no. 3145 of February 12, 2026, has issued a landmark ruling regarding the legitimacy of a worker’s refusal to perform professional activities due to unsuitable premises, confirming the nullity of retaliatory dismissal. This decision provides essential clarification on the burden of proof in workplace safety matters and the validity of the "exception of non-performance" (eccezione di inadempimento) raised by employees.
Case background and regulatory context
The dispute originated from a dismissal for "just cause" (giusta causa) issued to an employee after she was absent from her workplace. However, the absence was not arbitrary; it was a direct reaction to severe deficiencies in the working environment, which included unheated rooms and restrooms that lacked basic privacy.
The employer had previously attempted to terminate the relationship for objective justified reasons, a dismissal that was subsequently declared null as it was found to be retaliatory. The Court of Appeal, upholding the first-instance decision, identified the second dismissal as a continuation of a punitive strategy designed to force the employee into non-performance in order to sanction her.
The legal issue: the exception of non-performance under Art. 1460 c.c.
The core of the dispute lies in the balance between the employee’s obligation to work and the employer's statutory duty to ensure the safety and dignity of personnel under Art. 2087 of the Italian Civil Code.
The Supreme Court confirmed that in the presence of an unhealthy environment or conditions harmful to human dignity, a worker may legitimately invoke the exception of non-performance (Art. 1460 c.c.). Essentially, if the employer fails to meet their protection obligations, the employee may refuse to perform their duties, provided such refusal does not contravene the principles of good faith. In this specific case, freezing temperatures and inadequate sanitary facilities were deemed valid grounds to justify the work stoppage.
Legal principles on the burden of proof
A pivotal point of ordinance no. 3145/2026 concerns the distribution of the burden of proof. The Supreme Court reaffirmed that:
- The worker only needs to allege the existence of the employment relationship and the presence of a potential risk factor in the workplace.
- The employer, under the rules of contractual liability (Art. 1218 c.c.), bears the burden of proving they have correctly fulfilled their safety obligations, demonstrating that the premises were suitable or that any damage resulted from causes beyond their control.
The Court clarified that the absence of harmful or hazardous conditions must be proven by the employer, as the right to health and human dignity is an integral part of the contractual relationship (sinallagma).
Operational implications for employers and employees
The ruling emphasizes the central importance of prevention and workplace maintenance. For businesses, the risk of a reinstatement order under Art. 2 of Legislative Decree no. 23/2015 is significant if a dismissal is classified as retaliatory.
The determination of retaliatory intent is based on presumptive indicators, such as:
- The close temporal proximity between the worker’s refusal and the disciplinary dismissal.
- The disproportion between the employee's conduct and the severity of the sanction.
- The existence of prior litigation highlighting a punitive intent by the employer.
This judgment reiterates that disciplinary power cannot be used to circumvent the legal obligation to guarantee dignified and safe working conditions.
