Dismissal Caused by an Employee Harassing Female Colleagues by Sexting is Lawful

The case concerned an employee dismissed for a just cause as a result of multiple episodes of “sexting.” Indeed, the employee continuously sent messages to two colleagues, clearly projecting unwanted attentions, approaches, and invitations, making them feel uncomfortable.

Moreover, the dismissal constituted the outcome of several disciplinary measures served by the employer, which had no effect on the employee’s reiterated conduct.

Both the Court of Milan and the Court of Appeal of Milan held that the applicant’s dismissal was undeniably lawful, constituting a proportionate measure aimed at definitively eradicating conduct that could not be tolerated, least of all within the working environment.

The Judges highlighted that the employee’s behaviour was carried out in breach of company policies and represented a lack of respect for the female employees who were the victims of his unwelcome attentions, as well as a significant disregard for the unease caused to them by the continuous unwanted approaches.

The employee challenged the decisions before the Supreme Court, complaining that the Judges of first instance wrongly assessed the conduct without considering the breach by the bank of the mandatory rules regulating the disciplinary procedure under Italian labour law (i.e., the promptness and specificity that shall characterise the disciplinary complaint). Furthermore, he sustained the unreliability of what the witnesses heard and the lack of concrete evidence for feelings of fear by the involved colleagues.

The Court of Cassation with judgement no. 31790 of 15 November 2023 rejected the claim, stating the formal correctness of the disciplinary procedure implemented by the bank and outlining that in the event of repeated inappropriate approaches and invitations, the most significant element to be taken into consideration is the employee’s lack of respect for his victims by repeatedly making them uncomfortable in the workplace.

The Court stated that the conduct infringing on the dignity and safety of the other colleagues integrates a just cause for dismissal.

By expressing the above conclusions, the Supreme Court reminds that the just cause for dismissal pursuant to Article 2119 of the Civil Code constitutes a general clause that the interpreter must concretise by means of external factors relating to the general social consideration. In the light of these principles, there is no doubt that the disciplinary dismissal is legitimate, where the employee’s behaviour is in breach of company regulations and causes discomfort toward colleagues through continuous inappropriate approaches and invitations.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• The employee’s conduct in sending unwanted messages of sexual nature to colleagues shall be considered by the employer to be of extreme seriousness and legitimates the dismissal without notice of the concerned worker;
• The employer shall take care of the employees’ health and safety in the workplace by preventing sexual harassment pursuant to Section 2087 of the Italian Civil Code. Therefore, the employer is required to intervene by adopting all measures, including those of a disciplinary and organisational nature, necessary to ensure the protection of employees.
• The harassment between colleagues in the workplace constitutes an issue that is becoming increasingly widespread and should be properly managed by employers.