In addition to the remuneration, the payment of contributions, holidays or some allowances, employees are entitled to the break on the working day. The foundation is in art. 8 of the d. LGS. 66/2003, which establishes that – when the daily working time exceeds six hours – the employee has the right to an interruption of lasting not less than ten minutes. In this short period of time, it will be possible to go to the bathroom, drink a coffee, smoke a cigarette (in special spaces) or in any case carry out short leisure activities.
This is why, if the employer wants this rule and – above all – it systematically does it over time, it will be exposed to compensation for health damage to employees, to whom the pause has been denied. Let’s see what the sentence no. 20249 of the Cassation and what is its general scope.
The concrete case, the decent breaks and the outcome of the first two degrees of judgment
The decision of the Court, which affects here, originates from a dispute that saw more employees to the regional company where they were on duty. At first instance, the employees saw and reiterated – in their favor – the right to the pause of at least ten minutes, but without the recognition of damage from psychophysical wear and consequent compensation.
In order to receive full protection, the workers went on appeal and, here, the second instance judge accepted their request, condemning the regional company to compensation. In particular, from the facts of the cause it had emerged that the violation had lasted for ten years and, therefore, had been characterized by an intensity higher than what is commonly acceptable. This is why, ascertained the decent or missed breaks, the territorial court had come, in presumptive, to consider a significant and compensable damage to health or psychophysical usury.
Against this decision, the regional employer company appealed by cassation, complaining that employees had not given the precise, detailed and direct medical test of the consequences suffered for the lack of pauses at work.
The decision of the Cassation and the mechanism of presumption
With sentence no. 20249, the Court confirms the correctness of the previous sentence and clarifies that-like those who do too many extraordinary or massacre shifts-it is the victim of damage from psycho-physical usury, the one who carries out subordinate work and, for a long time, cannot make use of the breaks provided in the contract.
In particular, the damage arises from the non -recovery of energy, due to the short “detachment” failure during the working day, and is linked to the need to guarantee health and safety. The employer must respect the d. LGS. 81/2008 but – even higher – art. 2087 Civil Code, adopting suitable measures to protect the physical and moral integrity of personnel.
The decision of the Cassation goes to the benefit of the employee not only because he reiterates the rightness of the compensation, but also confirms the correctness of the presumptive path to ascertain the responsibility of the company, for the decent and missed breaks.
In summary, according to the Court:
- The existence of the damage from psycho-physical usury can be ascertained even without overwhelming or direct evidence, provided that the employee provides useful elements to reconstruct the situation and, presumably, to a decision favorable to him;
- The damage, that is the unknown fact, is deduced and recognized by the judge thanks to the logical-legal reasoning and serious, well-known and acclaimed facts.
- This mechanism works when the connection between the event and its harmful consequences is so usual, frequent or evident that it does not require a medical, specific and direct test;
- The worker must experience the failure to use the breaks (e.g. by email or messages on the mobile phone, testimonies of colleagues, or service orders prohibiting the break). At the same time, the employer has the burden of demonstrating that he has instead guaranteed them.
The Cassation thus confirmed the orientation of the appeal, clarifying again that the violation of the rules on the pauses – if protracted over time – can actually damage the health of workers. The judge of merit will always establish whether the damage and its entity resorts, and not the Cassation.
What changes
By placing on the line of previous pronouncements (such as the very recent one on the Bathroom Bathroom Denmed), the sentence no. 20249 of the Court of Cassation has highlighted a very important jurisprudential principle for all employees and employees: repeatedly denied pauses determine damage from psychophysical wear in the workers, and it is possible to ask for economic compensation. In fact, art. 8 of the d. LGS. n. 66 of 2003 and the aforementioned damage to health can be recognized with a certain elasticity, presumptively and without direct proof.
In general, method and duration of the interval for the break are set by the individual CCNL or by the company regulations. If there is no collective discipline of reference, the worker will still have to be recognized a break of at least ten minutes, which he will be able to use as best he believes.
In conclusion, this decision of the Cassation significantly enhances the protection of employees. In the event of non -granting of the breaks (not occasional), workers now have a very important previous jurisprudential to rely on, to request compensation for damages. However, it is essential to collect documentary or testimonial tests that highlight the failure to use the breaks.
