Investigations on the Abuse of Leave under Law 104/1992
Under Law 104/1992, certain categories of employees are entitled to take paid leave for a few hours or days in order to provide assistance to disabled family members.
Any employee who, during such paid leave intended for assisting a disabled relative, engages in activities not entirely dedicated to that purpose commits an unlawful act—not only against their employer (for improperly using paid leave contrary to the objectives set by law), but also against the national welfare system. Since the allowance is partly provided by the Italian National Social Security Institute (INPS), such abuse imposes an unfair cost on the community.
This behavior undermines the employer’s good faith and unjustly deprives them of the employee’s work performance. Moreover, it breaches the trust the company places in the employee and may entail criminal liability for the abuser, potentially resulting in legal proceedings for damages to the State, as well as wrongful receipt of benefits and misuse of welfare provisions.
Therefore, an employee who takes advantage of leave under Law 104 to engage in personal activities instead of providing full assistance to the disabled person may be legitimately dismissed. Abuse of such leave constitutes just cause for termination. Due to the seriousness of the conduct, dismissal may occur without notice, as it qualifies as “dismissal for just cause.”
The Court of Cassation has recently ruled on this matter with judgment no. 9217/16 of May 6, 2016, confirming that dismissal is legitimate for all employees who falsely use paid leave under Law 104—that is, those who perform personal or unrelated activities, even partially, during leave granted for assisting a disabled relative. The Court held that performing other tasks during the same day of paid leave constitutes an abuse of rights.
This interpretation has been consistently upheld in case law. With order no. 2743 of January 30, 2019 (Labour Section), the Court of Cassation rejected the appeal of an employee who was dismissed after being found on vacation, away from the location of the disabled relative, during days of leave requested for assistance.
In conclusion, the law allows employers to engage private investigators even based on reasonable suspicion that employees may be engaging in such misconduct. This was reaffirmed by ruling no. 4984/14 of the Labour Section of the Court of Cassation, which confirmed the employer’s right to hire a private investigator or investigative agency to protect company assets and verify whether an employee benefiting from leave under Law 104/1992 is legitimately using it or instead committing an offence against both the employer and the community.