Pursuant to article 56 of 26.03.01 n.151, female workers have the right to keep their job and, unless they expressly give it up, to return to the same production unit where they were employed at the beginning of the pregnancy period or in another location in the same municipality, and to remain there until the child is one year old; they also have the right to be assigned to the duties last performed or to equivalent duties, as well as to benefit from any improvements in working conditions, provided for by collective agreements or by law or regulation, which they would have been entitled to during their absence.
The provision, therefore, translates into an express prohibition of the employer to modify the employment relationship under a double profile, the place of execution of the employment relationship and that of the duties performed.
Non-compliance with these provisions is even punished with an administrative sanction, which therefore makes the protection law mandatory and as such mandatory.
The European Court of Justice has recently clarified that the adoption of preparatory measures for a decision to dismiss a female worker due to pregnancy/or the birth of a child in the period from the beginning of the pregnancy to the end of the maternity leave is contrary to directive no. 92/85/EEC, concerning the implementation of measures for the improvement of the safety and health at work of pregnant workers, those who have recently given birth or are breastfeeding. This decision is also defined as contrary to directive no. 76/207/EEC, concerning the implementation of the principle of equal treatment between men and women as regards access to work, vocational training and promotion and working conditions.
According to the ruling on the merits, the transfer of the worker upon return from maternity leave is illegitimate even if the pregnancy ended with the birth of a stillborn child (Court of Milan 06 July 2002).
The violation of this rule implies an absolute nullity of the provision of modification imparted by the employer, with the consequent inability to produce any effect.
From this clearly follows the right of the working mother to maintain the same workplace and the same duties.
It follows that in the case of the ISF, enlargement a
