In its judgment No. 144 of 13–15 January 2026, the Court of Milan ruled that the recruitment policy adopted by a well-known multinational employment agency was discriminatory.
In particular, the Agency was penalised for adopting a rule that excluded non-EU nationals holding a residence permit with a remaining validity period shorter than the duration of the assignment – under a fixed-term agency contract – for which the recruitment was intended, from the recruitment process.
The judgment, whilst acknowledging that “the legislation governing the entry of foreign nationals into Italian territory for work purposes provides, as is well known, for a strict link between the residence permit and the employment contract” and is backed by criminal penalties, and whilst acknowledging that, in this specific case, “the disadvantage is minor”, found that the exclusion of candidates holding a residence permit of shorter duration than the temporary agency work assignment constituted prohibited discrimination.
According to the judgment, such discrimination would be unjustified, since the criminal penalty (imprisonment for a term of between six months and three years and a fine of €5,000) would be limited to cases where foreign workers are employed without a permit or with an expired permit “for which no application for renewal has been made within the statutory time limit”.
The grounds for the decision note that there is “a viable option”, consisting of the submission, whilst the employment relationship is ongoing, of an application for renewal of the permit, which would allow “the worker to remain beyond the original duration of the permit, including through the use of the extension mechanism”.
The decision is unconvincing and invites justified criticism regarding the risk of criminal penalties to which an employer would be exposed if they entered into an employment contract with a term extending beyond the expiry of the residence permit, bearing in mind that the application for renewal is a voluntary choice made by the employee and, therefore, lies outside the employer’s control and cannot be taken for granted.
Nor, on the other hand, does the decision to exclude from a recruitment process for a fixed-term contract those individuals who, at the time of recruitment, can only be lawfully employed until a date prior to the aforementioned term appear illogical or unjustified.
In any event, in light of this ruling and, more generally, of an undeniable trend towards greater attention to the issue of discrimination and the broadening of the relevant concept, it is important to emphasise the need to take particular care to avoid conduct which, even during the pre-recruitment phase, could be deemed discriminatory.