In its 11 June 2018 decision (15094/18) the Supreme Court found that a dismissal for just cause is unlawful if the employer uses an investigator to monitor an employee's job performance. The ban on the use of investigative agencies also applies to activities carried out by employees off their employer's premises and renders investigative reports unusable unless they concern behaviour that suggests criminal activity.

The Rome Court of Appeal overturned a Tribunal of Rome decision and found that investigative reports may be used in court, as in the case under review, the employee performed the majority of their role outside the company premises. As a result, the court found that the employer could use an investigator to monitor the employee's job performance.

The employee challenged this decision in the Supreme Court. The Supreme Court cited the Workers' Statute (Law 300/70), which allows employers to use an investigative agency to:

  • protect company assets; or
  • monitor job performance and potential breaches of contract.

However, for the Supreme Court, employee monitoring by security guards or investigative agencies cannot under any circumstances concern the fulfilment of an employee's contractual obligations.

The ban on the covert monitoring of an employee's job performance also applies to activities performed off company premises without prejudice to the use of a private investigator to check potentially criminal behaviour.

The Supreme Court rejected the Rome Court of Appeal's decision that employers can use investigative agencies to monitor the job performance of employees under any circumstances.

For further information on this topic please contact Andrea Stanchi at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (a.stanchi@stanchilaw.it).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.