Employer’s defensive controls and soundness of the relevant suspects

The provision in Article 4 of the Workers' Statute was amended in the season of legislative reforms passed between 2014 and 2016 (the so-called "Jobs Act"). These amendments resulted in greater freedom on the employer’s part, with the introduction of the balancing of values between the protection of employee confidentiality and the safeguarding of company assets. Below is an analysis of the specific elements of the new regulatory text and the concrete possibilities offered to entrepreneurs to defend their business interests.

When entrepreneurs believe their employees' unlawful or unfaithful conduct endangers the company's business and assets, they are allowed to conduct inspections. They are not affected by the rigid proceduralism under Article 4 of Law No. 300/1970, causing the employees' general right to confidentiality to yield before entrepreneurial freedom (which is protected by our Constitution).

However, according to previous case law, said right may be legitimately exercised only when it is made necessary on account of a suspect grounded enough to justify an actual intrusion into employees' personal life. However, it is clear that if there is no legal definition of such interference and it should be deemed unjustified, this kind of conduct could cost the employer to pay compensation for the damage suffered by the employee under investigation. Moreover, the company could not use any evidence thus collected for disciplinary and procedural purposes.

To reduce the risk of a legitimate defensive control turning into the violation of the employee's right to confidentiality, it will be necessary to refer to previous judgements that have attempted to define the meaning of "well-founded suspicion".

For instance, a check on login files (the subject of which made it possible to identify e-mails forwarded externally from the employee's company account) following an alert from the company's computer system was deemed lawful. The Court did not consider such login files tools used by the employee to render their work performance. Therefore, the findings derived from the check thus carried out were deemed relevant enough to breach the fiduciary relationship with the employee, so the latter was finally dismissed legitimately for cause (Supreme Court, Labour Section, sentence no. 34092/2021).

And again, the spread of a virus in the company network caused by the employee's access to websites visited for personal reasons – which the employer had become aware of as a result of the intervention and assessment of the computer system administrator – was deemed as a well-founded suspicion which justified the employer control (Supreme Court, Labour Section, no. 25732/21); as well as a traffic auxiliary's inactivity (regularly placed during periods of several hours) detected by the supplied handheld: the reference centre did not receive any communication from said device for the whole mentioned periods and, consequently, the investigative activity ordered on the employee was considered legitimate (Court of Padua, Labour Sec., no. 271/2020). 

Differently to the above, on the other hand, the suspect that arose from an employer regarding two employees (married to each other) who remained simultaneously absent from work (regularly justified by medical certificates) was not considered sufficiently sound. Although the investigations carried out by the employer showed that, during said days of absence, its employees had been working elsewhere (more specifically, for their children who owned a separate business), the consequent dismissal was, indeed, declared unlawful: in fact, the Judge did not consider the employer's suspects grounded enough to justify setting an investigation towards the involved employees (Court of Varese, Labour Sec., July 3, 2013).

The EDU Court has recently expressed itself on the subject (Judgment no. 8567, October 17, 2019). In the case at hand, the manager of a Spanish supermarket noted significant shortages and general irregularities between the store's stock and the relevant sales (around EUR 80.000 over five months). Based on this suspicion, visible and hidden CCTV cameras were installed within the business premises, thus revealing some employees' illegal conduct (among others, the cameras had caught some cashiers stealing significant amounts of products). The involved employees proposed the relevant perspective arising from such a case. They claimed that there had been a severe violation, to their detriment, of Article 8 of the Workers Statute. Courts have often stated that such provision shall apply to the working environment, although it prescribes a more general concept of respect for individual privacy and family life. However, the Court deemed the means of control used to be lawful, thus considering the employer's suspicion behind such a measure to be well-founded since it was motivated by the supposed commission of serious offences.

In conclusion, although "well-founded suspect" does not have a precise legal definition, recent scholars' opinions and case law seem to allow employers to check their employees upon certain conditions. Employers can go through such conduct whenever the threat that the employees are engaging in suspicious behaviours can be immediately assessed and connected to criminally relevant facts or it is likely to cause considerable economic damage to the company's assets.