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The presumption of dismissal due to marriage applies only to women.

The Corte di Cassazione, with the recent sentence n. 28926/2018, established that the nullity of the dismissal due to marriage, provided for by art. 35 of the d.lgs. n. 198/2006 and in force for women workers only, does not integrate any gender discrimination.

The Supreme Court, indeed, recalling the sentences of the Corte Costituzionale n. 27/1969 and n. 61/1991, argued that “the regulatory provision under consideration, far from being discriminatory, is absolutely legitimate, as responding to a difference in treatment justified by reasons, not gender of the worker, but of maternity protection, constitutionally guaranteed to the woman, also holder, as a worker, of the same human rights, depending on the fulfillment of her essential family function also in the assurance to the mother and the child of a special protection”.

Finally, the Court excluded that this provision is in contrast with the European anti-discrimination norms, such as art. 23, paragraph 2, of the Charter of Fundamental Rights of the European Union, according to which “the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex”.



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