A recent decision of the Italian Supreme Court (Labor Section, of November 16, 2012, No. 20163) has taken into consideration the possible liability of the employee who takes possession of documents belonging to the employer in order to use them as evidence before a court or a public authority.

In the case considered by the Court, an employee was terminated by the employer for breach of the employment contract, given the alleged misappropriation by the employee of the company's correspondence and bank records and for having used such documents as evidence filed with a criminal challenge against his colleagues and the employer.

The first instance and the appeal Labor Court issued decisions which declared unlawful the dismissal for breach of the employment contract. The Supreme Court (which is the third and last instance of jurisdiction) has upheld such decisions. In particular, the Supreme Court has stated that the employee's conduct could not be considered as a breach of the employment contract, as it was proved that he used the documents to support his report to the authorities in order to protect his rights and to give evidence, also in the light of his appointment as trade union representative, of certain unfair and anti-union practices of the employer.

In this respect, the commented decision is consistent with the Supreme Court's traditional position (for instance, decision No. 3038/2011), according to which the filing of company documents before the Court or before a public authority does not represent a breach of the confidentiality obligation set forth by Article 2105 of the Italian Civil Code because of two independent reasons: (i) firstly, a breach of such obligations arises in case of "disclosure" of confidential information and that does not technically happen in case of a document filed before a Court/authority and (ii) secondly, the right of the employees to defend themselves prevails over the confidentiality obligation from which the employer benefits.

The commented decision confirms that the employer cannot prevent an employee from using company documentation if he/she does this in the context of his/her defense. This limit to nondisclosure needs to be taken into account both during the employment and after its termination.