‘Employment suitable for capabilities’
| Author | Marcella Scaglione,Michele Sammicheli |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
| DOI | 10.1177/1388262718798897 |
| Subject Matter | Articles |
EJSS
Article
European Journal of Social Security
2018, Vol. 20(3) 242–252
‘Employment suitable for
ª The Author(s) 2018
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capabilities’: The medical-legal
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DOI: 10.1177/1388262718798897
principle in Italian invalidity social
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security benefits in the current
historical work context in Europe
Michele Sammicheli
INPS, Medical Legal Dept., freelance forensic specialist Physician, Siena, Italy
Marcella Scaglione
INPS, Medical Legal Dept., freelance forensic specialist Physician, Siena, Italy
Abstract
The authors1 trace the evolution of the social security concept of capability for work in
‘employment suitable for skills’. This principle emerged at the end of the 1930s during the Fascist
period, and it is the foundation for the current Italian law (no. 222 of 1984) relating to social
security insured sickness. Having described the concept and its historical evolution, they highlight
the developments that have had to take place in the last decade, due to changes in working
conditions and the growing economic crisis that has affected all of Europe. They then analyse three
cases to confirm that the recent economic crisis in the Italian and European labour markets has had
an impact on the medical-legal assessment of a work activity as suitable for the capabilities.
A careful examination of the relationship between sickness, disability and capacity for work in
other EU and non-EU countries is undertaken to highlight the delicate social and medical issues
surrounding job retention and the return of disabled persons to work.
Keywords
Invalidity, social security, INPS, employment suitable for capabilities, disability
1. Both authors are medical doctors specialising in Forensic Medicine, who have worked in collaboration with the Medical
Legal Department (CML) of the Italian National Social Security Institute (INPS) for a period of ten years.
Corresponding author:
Michele Sammicheli, Medical Legal Dept. (CML), Italian Institute of Social Security (INPS), Lippo Memmi street n. 2, 53100,
Siena, Italy.
E-mail: sammicheli@alice.it
Sammicheli and Scaglione
243
Introduction
In Italy the social and economic protection of non-work related illness is provided through Social
Security and Social Assistance. Social Security (Previdenza Sociale) is based on a social insur-
ance: it protects people of working age and involves the payment of pensions (social insurance
premiums). Those who work within the household and self-employed workers (freelancers) who
are resident in Italy pay social security contributions. For other employees (e.g. metal and con-
struction workers, farmhands, office staff, managers, shopkeepers, traders), the employer com-
pletes the administrative formalities for social security premium,2 so that the employee’s
contributions are deducted from their wages.
Social Assistance (Assistenza Sociale), on the other hand, comprises the set of provisions for
non-working persons, i.e. people not of working age such as minors or elderly persons, unem-
ployed people, and persons who do not meet the administrative criteria to qualify for a pension.
The provision of assistance is based on taxes levied on all citizens, a general health protection
taxation. Civil Incapacity Benefit (Invalidita` Civile) protects those with non-work-related illnesses
who are not protected by social insurance. The safeguarding of workers against injuries and
occupational diseases is managed by INAIL, the Italian National Institute for Insurance against
Accidents at Work.
Law no. 222 of June 19843 sets out the current social security protection for invalidity benefits.
It states that
‘ . . . an invalid, for the purposes of obtaining the right to be granted mandatory insurance payments for
disability, old age and the survivors of employees and the self-employed, which is administered by the
National Institute of Social Security (INPS), is an insured person whose capacity for work in occupa-
tions matched to his/her capabilities, is permanently reduced to less than one third, due to an infirmity
or a physical or mental deficiency.’
The concept of ‘work in occupations matched to his/her capabilities’, i.e. work in activities suited
to their skillset, which forms the medical legal basis of Law 222/1984, was drafted in the Fascist
era, with Royal Legislative Decree No. 1827 of 1935,4 which modified the preceding Legislative
Decree No. 603 of 1919. The latter established that ‘a person is considered unfit for work if their
earning capability is reduced to less than 1/3 of the normal earnings of people working in the same
occupation in the same locality . . . ’5. The 1935 Decree replaced the original concept of a specific
work capacity (inherent in the job being practiced by the individual) with the notion of a ‘suitable
activity’, that is, a job that could be performed by the individual on the basis of his/her skills,
cultural background and work experience. Those considered to be in appropriate activities have,
2. The Italian social security system (extract from Living and Working in Italy from Survival Books); available online at:
https://www.justlanded.com/english/Italy/Italy-Guide/Jobs/Social-Security
3. Law no. 222 of 12 June 1984 (Review of the retirement invalidity regulations), published in the Official Gazette of the
Republic (Gazzetta Ufficiale della Repubblica Italiana) No. 165 of 16 June 1984, available online at: http://www.
handylex.org/stato/l120684.shtml
4. Royal Legislative Decree No. 1827 of 4 October 1935 (Improvements and legislative coordination of social security),
available online at: https://www.cliclavoro.gov.it/normative/rdl_4_ottobre_1935_n.1827.pdf
5. Royal Legislative Decree No. 603 of 21 April 1919 (Compulsory insurance against disability and old age for persons of
both sexes who provide their work for the benefit of others), available online at: http://www.giornatanazionaledella
previdenza.it/template/upload/libro/pdf/pannello3Catalogo.pdf
244
European Journal of Social Security 20(3)
basically, a form of work capability that could be considered intermediate, but not necessarily
midway between general work skills and those of a specific type. The former is the capacity to
perform manual, unspecialised jobs that do not require special training or education. The latter, on
the other hand, corresponds to specific activities that a worker performs, for which he/she has
received appropriate training and has gained experience throughout his/her working life. For
‘employment suited to aptitudes’, however, these must be ‘occupations that the policyholder has
exercised, in a non-occasional but continuous manner, throughout their working life, and occupa-
tions that are similar to them in terms of the physical commitment and aptitude qualities required’.6
Of course, the more specialised the activities carried out by a worker are, the more the appropriate
activities will approach what is called specific work; and where the activities suitable for the
policyholder are much less specialised, the closer they get to general work. The 1919 Decree
defined earning capacity as the ability to work, which was interpreted as the validity7 of an
individual policyholder, relative to the labour market in which they were operating.
Law no. 636 of 19398 introduced a differentiation between those who carried out manual work
(manual workers) and those who carried out office work (clerical staff). For manual workers, a
reduction of less than one third of the earning capacity was needed to be recognised as a disability.
With clerical staff, a reduction to less than half of the earnings capacity was sufficient.
Between the 1960s and 1970s, social and...
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