Simulation: only a medical examiner can disallow a sick certificate

Only a medico-legal technical assessment can disallow an illness certificate. This was established by the Court of Cassation (ordinance no. 8738/2026), which declared illegitimate the dismissal of a worker who had been accused by his employer of simulating an anxiety-depressive syndrome on the basis of a plurality of indications acquired through an investigative agency: refusal to undergo a psychiatric examination, failure to purchase drugs prescribed by the attending physician, the worker's opposition to carrying out new tasks, and the performance of recreational activities during the period of absence from work. Indications that the Court of Appeal of Florence had considered symptomatic of the 'absence of a state of illness and its simulation' (judgment of 23 January 2025).

In his appeal in cassation, the employee had denounced the violation of Article 5 of Law No. 604 of 15 July 1966 ("The burden of proof of the existence of the just cause or justified reason for dismissal lies with the employer") and Article 2729 of the Civil Code ("The judge [can] admit only serious, precise and concordant presumptions") because the Court of Appeal had burdened the same employee with the burden of proving "the reality of the state of illness".

This thesis hit the mark. The Supreme Judges, on the one hand, censured the Court of Appeal for not having ordered specialised examinations in order to disregard or not disregard the treating physician's diagnosis and, on the other hand, confirmed the orientation according to which:

- it is up to the employer to prove the employee's breach without merely providing 'evidence' of the alleged breaches as this would result in an unjustified reversal of the burden of proof (Supreme Court, judgment no. 13380/2015);

- the employer must prove all the elements integrating the case justifying the dismissal and, therefore, all the circumstances, both objective and subjective, capable of characterising the contested disciplinary offence, also urging the judge to carry out a technical expert's report (Court of Cassation, judgment no. 30551/2024).