CJEU: Discrimination in Seniority Between Fixed-Term and Permanent Workers

1. The facts

   The matter stems from numerous appeals filed by public employees, particularly in the education and healthcare sectors, who were granted permanent status after years of temporary contracts or substitutions. According to reports from Il Sole 24 Ore, the core of the dispute lies in the career reconstruction mechanism, which often only partially recognizes service rendered prior to stabilization. Currently, the issue constitutes consolidated jurisprudence at the European level, though litigation continues before national courts regarding monetary claims. Workers argue that duties performed under fixed-term contracts are identical to those of permanent colleagues, making the reduction in seniority a prohibited discrimination.

2. 

   The rules in play

   The governing provision is Directive 1999/70/EC, which implements the Framework Agreement on fixed-term work. Clause 4 of the agreement establishes the principle of non-discrimination, prohibiting less favorable treatment of fixed-term workers compared to permanent colleagues without objective justification. Nationally, the conflict arises with Art. 485 of Legislative Decree 297/1994, which restricts full recognition of pre-tenure seniority to the first four years while discounting subsequent periods. This regulatory conflict obliges national courts to disapply domestic rules that contradict EU law, ordering the recalculation of career progression and the payment of back pay.

3. What the jurisprudence says

   European courts consistently hold that the temporary nature of an employment relationship does not constitute an objective reason to deny seniority. The jurisprudence of the high courts has clarified that the trial judge must conduct an effective comparison between the duties performed during temporary employment and those of the permanent role: where functions overlap, seniority must be fully recognized. Furthermore, courts have specified that state budgetary constraints cannot justify a derogation from the principle of equal treatment, affirming the worker's right to receive salary increments accrued from the first day of actual service, subject to applicable limitation periods.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Always examine the tertium comparationis to verify whether the fixed-term worker performed duties equivalent to those of permanent colleagues.
   2. Monitor the five-year limitation period for salary claims, the accrual of which varies depending on the continuity of employment.
   3. Request the disapplication of Art. 485 of Legislative Decree 297/1994 in school sector litigation, invoking the duty of interpretation consistent with European Union law.
   4. Assess the impact of career reconstruction on future pension entitlements.

References: Direttiva 1999/70/CED.Lgs. 297/1994D.Lgs. 165/2001

Editorial oversight: Avv. Federico Papa·ICAMUpdated 2 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction