Authors: Stefano Perazzelli

Firm: Toffoletto De Luca Tamajo e Soci

The Italian Supreme Court has confirmed its earlier decision that employers can legally use investigative agencies to monitor an employee where the employer has a suspicion of wrongdoing that goes beyond a simple breach of the terms of the employee’s employment contract.The Italian Supreme Court has confirmed its earlier decision that employers can legally use investigative agencies to monitor an employee where the employer has a suspicion of wrongdoing that goes beyond a simple breach of the terms of the employee’s employment contract.

The Italian Supreme Court of Cassation has recently re-examined the question of the legality of employers using investigative agencies to monitor employee conduct, confirming its previous case law.

In its judgment of 4 September 2018 (no. 21621), the Court affirmed that, according to Articles 2 and 3 of Law no. 300/1970 (the Workers’ Statute), investigative agencies can lawfully be hired to monitor employees and their actions if the employer suspects that an employee is committing or has committed an offence that goes beyond a mere breach of his or her contractual obligations (this confirms the decision of the Court of Cassation no. 15094/2018). For example, an employer will be acting within the law if, by hiring the investigative agency, it intends to determine whether an employee is performing paid activities for a third party during working hours, or whether an employee is carrying out an activity outside the workplace that violates his or her contractual non-compete obligation, to the detriment of the employer.

Conversely, recourse to investigative agencies is not allowed if it is aimed at ascertaining whether an employee is correctly fulfilling his or her contractual obligations linked to work, or whether he or she has breached them in the past. This is because supervision of work activities is legally the responsibility of the employer (this follows the decision of the Court of Cassation no. 9167/2003). For example, ascertaining whether an employee systematically leaves the workplace during working hours without informing their employer cannot be delegated to an investigative agency: it is the employer’s (and its internal collaborators’) sole responsibility.

Taking the above into consideration, in its judgment no. 21621/2018 the Court of Cassation affirmed the unlawfulness of the dismissal based on evidence from an investigative agency of an employee who, on various occasions, falsified his work attendance record. The employee was able to do so because he was responsible for the system that recorded employees’ work attendance and this conduct was uncovered as a result of investigative activity carried out by a third party agency. Hiring an investigative agency for such purposes breached the employer’s exclusive supervisory responsibility, as set out in Articles 2 and 3 of Law no. 300/1970.