When selecting the employees to pool together, company cannot dismiss a percentage of women higher than the percentage of women employed by the company with reference to the duties considered for the procedure. The rule aims at maintaining, among the positions impacted by the collective dismissal procedure, the same proportion of men/women existing before its implementation. The Supreme Court of 24 May 2019, no. 14254 clarifies that the provision at stake does not impose a comparison between the number of both male and female employees before and after the dismissal, but it rather imposes to verify the percentage of the female employees employed in the division impacted (among positions of same or interchangeable duties).

More and less all employers know that in a massive lay-off procedure they are not free to choose the positions to dismiss based on performance but must apply objective selection criteria (length of service, family dependents and organizational needs). Not many employers know, instead, that they have a further limit when selecting the employees to pool together: they cannot dismiss a percentage of women higher than the percentage of women employed by the company with reference to the duties considered for the procedure.

What does that mean? The rule aims at maintaining, among the positions impacted by the collective dismissal procedure, the same proportion of men/women existing before its implementation. An example may help to further clarify. We assume that a company wants to cut 6 positions out of 10 implying same or interchangeable duties, of which 10 men and 10 women. In order to comply with the gender proportion rule the employer cannot dismiss in this case more than 3 women, even if so would result from the application of the above mentioned selection criteria, over which the proportion rule therefore prevails.

This obligation is set forth by section 5(2) of law no. 223/91 and is an expression of the prohibition of indirect discrimination provided by law no. 236/1993 which imposed amendments to the existing regulation as to ensure the maintenance of the gender balance in the collective dismissal procedure. Unfortunately the rule is not always complied with by employers and, from time to time, some case law reminds it like the recent Supreme Court of 24 May 2019, no. 14254 did.

In particular, the Court clarifies that the provision at stake does not impose a comparison between the number of both male and female employees before and after the dismissal, but it rather imposes to verify the percentage of the female employees employed in the division impacted (among positions of same or interchangeable duties), allowing the employer to dismiss a number of employees such that the women quota cannot be higher than the percentage previously determined.

This obligation should be well taken into consideration by any employer which wants to implement a collective dismissal procedure, given the severe consequences of its non-compliance. The breach of the provision might in facts lead the judge to declare the dismissals discriminatory with subsequent reinstatement (or the alternative 15 months' indemnity at employee's discretion) of the employees plus payment all interim salaries and relevant social contribution.

The "ladies first" saying does not definitely apply when it comes to this rule.

Fonte: http://www.ipsoa.it/documents/lavoro-e-previdenza/amministrazione-del-personale/quotidiano/2019/07/22/collective-dismissal-it-is-necessary-to-preserve-the-percentage-of-women-employees