In its order no. 25287 of 24 August 2022, the Court of Cassation ruled on remote controls carried out by the employer and confirmed the legal principles within which the employer may use a detective agency. According to the Supreme Court, the employer may use a detective agency if offences have been committed or there is a suspicion that offences are being committed
The facts and ruling outcome
The case submitted to the Court of Cassation concerns an employee who worked under a flexible work regime.
The worker was accused of having left his place of work, during working hours, for tasks unrelated to his job. A detective agency recorded meetings outside the place of work (supermarkets and gyms), unrelated to work, in places tens of kilometres away from the workplace. The worker was later dismissed.
The employee lodged a judicial appeal against his dismissal for having left his place of employment, during working hours, and for carrying out tasks unrelated to his job.
The Court of first instance and the Court of Appeal of Rome held that the checks carried out by a detective agency were lawful. The checks related to the position of a bank employee since his employment required stricter compliance with the obligation of loyalty and the related rules of diligence and fairness. These checks were part of a broader investigation into the worker concerning the violation of leave under Art. 33 of Law no. 104/92 by a colleague which involved the appellant who had been reprimanded several times.
The local Court considered the findings relating to the failure to comply with the obligation to deliver the documentation requested by the worker and the untimeliness of the charge notification unfounded.
The Court of Cassation Appeal
The worker challenged the decision, appealing to the Court of Cassation, based on four grounds. We will focus on the first three.
In the first ground of appeal, under Art. 360 no. 3 Italian Code of Civil Procedure, the worker alleged violation and false application of Articles 2, 3 and 4 of Law no. 300/1970 (“Workers’ Statute”) on work performance monitoring by an external detective agency. He stated that such monitoring must be limited to unlawful acts not attributable to the worker’s failure to fulfil their obligations. His argument was that such surveillance could not become work supervision since this task must be performed directly by the employer and its employees under Art. 3 of the Workers’ Statute.
In his second ground of appeal, the appellant alleged failure to examine a decisive fact about the unlawful monitoring of work performance and working conditions by an external detective agency. He argued that the Court of Appeal failed to consider that the employer’s informants were instructed to verify work performance and monitored the employee beyond normal working hours, checking in detail the way work was carried out.
In his third ground of appeal, under Art. 360 no. 3 Italian Code of Civil Procedure, the worker alleged violation and false application of Articles 24 of the Constitution and 7 Law no. 300/70, highlighting the violation of the worker’s right of defence and failure to apply the guarantees imposed by the Workers’ Statute. He argued that the Court of Appeal failed to admit the submission of the documentation requested by the appellant, consisting of the personal file, annual profit assessment certificates, attendance sheets from September 2015 to July 2016, and the mandate signed with the detective agency.
The legal principles referred to by the Court of Cassation
The Court of Cassation mentioned Articles 2 and 3 of Law no. 300/1970, which restrict the action of those appointed by the employer (to defend its interests, and protect the company’s assets) – Art. 2), and work performance supervision – Art. 3). These protect the worker’s freedom and dignity, consistently with constitutional provisions and principles.
The Court of Cassation pointed out that the above rules do not preclude the entrepreneur using external parties, such as a detective agency. However, this control cannot concern the performance or non-performance of the worker’s contractual obligation to perform their work, since these activities cannot be under this kind of supervision (Court of Cassation ruling no. 15094 of 11 June 2018).
External controls must be limited to the worker’s wrongful acts that cannot be traced back to the non-performance of the obligation (see Court of Cassation ruling no. 9167 of 7 June 2003).
The Supreme Court stated that detective agencies, to operate lawfully, cannot supervise work performance and this principle had been established under cash law. Under Art. 3 of the Workers’ Statute, this task is directly assigned to the employer and its employees.
Using a detective agency is justified if offences had been committed and needed to be verified, even when there is a suspicion that offences are being committed (Court of Cassation ruling no. 3590 of 14 February 2011).
The Court of Cassation ruling no. 15867 of 26 June 2017, stated that “if the employer is precluded from directly or indirectly controlling the work performance, the principle does not apply in cases where workers carry out impermissible conduct outside their normal work. The control is justified if offences had been committed and needed to be verified, and when there is a suspicion that offences are being committed (see Court of Cassation, labour Section ruling 14/2/2011 no. 3590: “The provisions of Art. 2 of the Workers’ Statute, in limiting the actions of those appointed by the employer to protect the company’s assets, do not preclude it from resorting to detective agencies, if they do not supervise work performance. Under Art. 3 of the Statute, this task is carried out directly by the employer and its employees. The service described above is justified if offences had been committed and the needed to be verified or if there is a suspicion that offences are being committed”; (Court of Cassation ruling 20/01/2015 no. 848 and Court of Cassation, ruling 11/10/2016, no. 20433).“
Controls outside these limits are precluded by the principle of good faith and the prohibition under Art. 4 of the Workers’ Statute, in the ratione temporis applicable wording, which includes the prohibition of secret work performance checks, even if work is performed outside company premises. This is without prejudice to cases where private investigators may verify conduct constituting criminal offences, such as, exercising paid services for third parties during working hours.
Continue reading the full version published in Modulo24 Contenzioso Lavoro (Form24 Labour Litigation of Il Sole 24 ore.