More and more often, lately, we hear about smartworking, that is, a new model of work, within the frame of dependent employment, by which work time and location may be determined, at least in part, by the employees, who are required “exclusively” to achieve the objective assigned to them or the set results.However, not all activities can be carried out in this way: in these cases, what are the limitations for employers to monitoring their employees’ working hours? Can they use a detective agency to ascertain whether the employee is actually working?

WHAT HAPPENED IN FACT

Consequent to an order by the Court of Padua, released on 4 October 2019, a worker was dismissed for just cause for falsely certifying his attendance whilst he was engaged in non-work activities.The employer could ascertain the defaulting conduct of the employee thanks to findings by a detective agency.

The worker challenged the dismissal arguing, as far as this is concerned, that the checks carried out by the employer through private investigators would have to be deemed unlawful and, in any case, the private investigators would not be allowed to take photographs.

The Judge, adhering to a well-established orientation of the Court of Cassation, stated that the employer's monitoring, including by means of an investigative agency, are legitimate where they are aimed at verifying any worker’s conduct that may constitute a criminal offence or a fraudulent activity, capable to damage the same employer, whilst they may not have the purpose of monitoring the fulfilment/non-fulfilment of the work performance, which is prohibited by Articles 2 and 3 of the Workers’ Statute.

In this specific case, rather than aimed to verify the manner in which the work performance was carried out, the monitoring action was intended to detect the employee’s fraudulent conduct, since he was absent from the workplace despite certifying falsely his attendance: which may be a fraud offence.

As regards the use of photographs by the investigators, on the one hand the Court held that, since it was not carried out by means of permanent monitoring tools from remote, “installed” for continued time, neither was it in the scope of Article 4 of the Workers’ Statute nor in the scope of the related authorization procedures. On the other hand, it stated that the actual purpose of that monitoring action was in accordance with the provisions of Article 8 of ECHR, for the need to ensure the protection of the employer’s rights, which not only include the safeguard of the financial interests of the company, but also the regular running of its business.

THE OUTCOME

In the light of the above, the Court of First Instance has stated that the findings by the detective agency had been lawfully availed of, and the dismissal was lawful.

This article was first published in the January-February issue of FoodService magazine in Italy, https://lnkd.in/djpcvbG