Misuse of parental leave: can it lead to dismissal?

Parental leave is a period of leave from work provided for by Legislative Decree No. 151/2001, which female and male employees may take during the first years of their child’s life.

The period of parental leave must be used by the employee exclusively for family-related needs connected with the care and assistance of the child. This expression of the right to parenthood must, however, be exercised in a manner that does not conflict with the employer’s legitimate rights and without any misuse of the welfare-related purposes protected by the social security institution.

In Judgment No. 2618 of 4 February 2025, the Italian Supreme Court confirmed the lawfulness of dismissal for just cause of an employee who, while taking parental leave, had carried out activities unrelated to the care and assistance purposes provided by law. In the case examined in that judgment, the employer had challenged the employee for having performed work in favour of third parties and for having attended to the child’s needs only marginally, as clearly demonstrated by the unequivocal evidence collected by a private investigation agency.

The Court — following a now well-established line of case law (see Cass. No. 16207/2024 issued only a few months earlier) — therefore reaffirmed that “misuse of parental leave constitutes a breach of the duties of fairness and good faith, thus justifying dismissal for just cause.” Likewise, while confirming that the burden of proving the abuse by the employee remains with the employer, the Supreme Court held that it is lawful to rely on investigations carried out by authorised private investigation agencies, provided that such investigations do not turn into direct monitoring of work performance.

However, as in cases concerning leave under Law No. 104/92, it will be the seriousness of the abuse itself — namely, the seriousness of the breach of the contractual duties of fairness and good faith — that will determine the actual level of the applicable sanction. The utmost care must therefore be exercised when carrying out an overall assessment of the employee’s conduct.

Where there are well-grounded suspicions regarding the conduct of some of your employees, BACCIARDI PARTNERS’ Labour Law Department is able to assist you throughout the entire disciplinary process and, above all, to advise you on the most appropriate sanction to be adopted in the specific case.