Parental Leave and Abuse of Rights: When Dismissal May Be at Ris

Abuse of parental leave according to the Italian Supreme Court

Referring to what is now settled case law, the Italian Supreme Court reiterated that parental leave is indeed a right exercisable by the employee, but its exercise cannot be arbitrary and remains subject to review for consistency with the purpose for which the legal system recognizes it.

According to the Court, the right must be exercised for the direct care of the child. The performance of activities unrelated to that purpose therefore constitutes an abuse of rights, because it makes the suspension of work unjustified.

Particularly significant is the Court’s reference to the settled line of authority concerning leave permits to assist persons with disabilities under Law No. 104/1992.

As the Italian Supreme Court observed, the benefit:

“entails an organizational sacrifice for the employer, justifiable only where there are needs recognized by the legislature (and by social conscience) as worthy of a higher level of protection;

where the causal link between absence from work and assistance to the disabled person (or care of the child) is lacking, the exercise of the right cannot be regarded as consistent with its function, and there is therefore an improper use or abuse of rights.”

Abusive conduct affects not only the employer – who is deprived of work performance without justification – but also the welfare intervention of the social security institution (such as INPS), which pays the statutory allowance for the leave.

Case law has nevertheless clarified that not every activity carried out during parental leave automatically amounts to disciplinary misconduct.

In Italian Supreme Court Order of March 18, 2025, No. 6993, the Court held unlawful the dismissal of an employee who, although he had requested and obtained parental leave to care for his minor child, had traveled in the final days of the leave period to his hometown because of the sudden worsening of his mother’s health.

On that occasion, the Court found no abuse in light of the specific circumstances of the case, emphasizing the exceptional and limited nature of the deviation and the fact that the primary objective of caring for the minor child had nevertheless been ensured.

In the case at hand, the Court gave weight to several factors:

• the child’s age;
• the severity of the illness affecting the employee’s mother;
• the fact that the leave had in part actually been devoted to the child;
• the absence of any work activity.

The non-derogable duties of family solidarity – relevant also at the constitutional level – therefore came into play.

According to the Italian Supreme Court, it cannot be considered contrary to the spirit of the rules if parental leave is used, on an exceptional basis and for a limited period, to address an urgent family situation, provided that the primary objective of assisting the minor child remains ensured.

“From a substantive standpoint, it cannot be considered contrary to the spirit of the statutory rules if the family leave at issue was taken in a factual situation that was particular and urgent, for the purpose of ensuring, for a limited period and by way of exception, a balancing of all the different values present in the specific case; provided that the primary objective of assisting the minor child was always and in any event objectively ensured within the family setting as well.”

It follows that the assessment of whether the employee’s conduct was lawful must be carried out case by case, taking account of the specific circumstances.

Parental leave under the framework of legislative decree No. 151/2001

Parental leave is governed primarily by Articles 32 et seq. of Italian Legislative Decree No. 151 of March 26, 2001, and is one of the central instruments through which the legal system pursues the goal of reconciling personal and working time – not, however, from the perspective of a mere benefit to the employee, but rather of protecting the minor child and the parental function.

The right belongs to both working parents.

As to duration, the rules provide, as a general matter:

• a total of ten months of leave between the two parents;
• eleven months if the father refrains from work for at least three months;
• an ordinary limit of six months for each parent.

The periods may be taken continuously or in installments, including on a daily or hourly basis and, within the limits provided by law, also simultaneously by both parents.

In terms of timing, the period during which parental leave may be used has also been extended from the child’s 12th to 14th year of life as a result of the 2026 Budget Law (Italian Law No. 199/2025), as confirmed by INPS (Italian National Institute for Social Security) in Message No. 251 of January 26, 2026.

As for the request to the employer, it must be submitted with at least five days’ notice. The notice period drops to two days when the leave is taken on an hourly basis. However, collective bargaining agreements may require longer notice, including 10 to 15 days.

As to the broader evolution of parenthood in female same-sex parent families, in 2025 INPS also reported on Italian Constitutional Court Judgment No. 115/2025, concerning mandatory paternity leave for the intended mother as shown in the civil-status records. I addressed this topic in detail in the earlier analysis, “Rainbow Families: The Constitutional Court Opens the Door to Paternity Leave for the Intended Mother as Well.”

The rationale of parental leave, including in light of the judgment just mentioned, also explains the limits on its exercise.

The institution is not conceived as a generic period of freedom from work, nor as a benefit left to the employee’s discretion, but as a measure designed to ensure:

• the material care of the minor child;
• the strengthening of the emotional and relational bond between parents and children;
• the promotion of shared parenting.

It is therefore not a benefit recognized exclusively in the employee’s interest, but a measure aimed primarily at protecting the minor child.

That very purpose is the interpretive benchmark used by case law to assess whether parental leave has been used lawfully and to distinguish between lawful use and abuse of rights.