In judgment 15/2023 issued on 9 February 2023 together with other two judgments, the Constitutional Court has held that no alimony is owed by the employer to the employee when the latter, subject to the obligation to vaccinate, decides not to vaccinate and is temporarily suspended from its employment contract.
The Court has indicated that the balancing between the constitutional right to work established in Articles 4 and 35 of the Italian Constitution and the right to self-determination in relation to health established by Article 32 of the Italian Constitution with the protection of collective health, results in the possibility for the legislator to permit temporary suspension of the labor performance by the employer. The protection of collective health prevails over the right to work.
Temporary suspension of the performance by health care professionals and school teachers is justified and proportionate when the performance of the employment contract may cause risks to public health and in particular to patients that need health care assistance.
The referring courts (the references were submitted by many first instance courts) had submitted a constitutionality review concerning the failure to establish an obligation to provide alimony to the employee which is temporarily suspended and loses its right to the salary.
The Court has stated that the denial of alimony is based on the principle of reciprocity. The temporary suspension of the contractual performance based on a free choice of the employee determines the lack of reciprocity between the performance and the payment and justifies the absence of a duty to pay alimony.