Managing employee surveillance is a sensitive issue, especially with the rise of new technologies. Recent rulings from Italy’s Court of Cassation have clarified the legal boundaries surrounding this practice.
The role of Investigative Agencies
Employers may use private investigators to check potential employee misconduct, such as unapproved absences or misuse of leave. However, these investigations must be focused, proportional, and lawful, ensuring they do not interfere with an employee’s work duties.
Monitoring company devices
Employers may need to access employees’ devices, such as emails or laptops, especially when there is reasonable suspicion of misconduct. The Italian Supreme Court has recently clarified that checking an employee’s email is only permitted when there is concrete suspicion, and such checks must not be arbitrary or excessive.
Balancing business needs and employee privacy
It is essential to strike a balance between business needs and employee privacy. Surveillance must be justified, proportionate, and never indiscriminate. Employers must ensure they follow legal guidelines to avoid misuse of the information collected.
Best practices
By following these principles, employers can protect their business interests while respecting employee privacy.
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Exceeding the sick leave period represents a delicate balance between employee rights and business needs. Over the years, case law has provided important guidance on the matter. What checks must the employer carry out, and what are the employee’s responsibilities?
The issue of exceeding the sick leave period is a key aspect of human resource management. On the one hand, employees suffering from serious or prolonged illnesses need sufficient time off to recover without losing their job. On the other hand, businesses must ensure operational continuity and may struggle to manage prolonged absences.
Managing the exceeding of the sick leave period requires a balanced and careful approach. Employers must verify compliance with contractual regulations and act in good faith, avoiding hasty or discriminatory measures.
Employees, in turn, have a duty to properly communicate their condition and comply with the rules set by their contract and the law. Over time, case law has provided essential guidance to balance these interests. However, only a case-by-case assessment can ensure the right equilibrium between employee protection and business needs.
The accrual period is mainly regulated by Article 2110 of the Civil Code, which states that in the event of illness, the employee has the right to keep his job for a period determined by collective agreements. Once this limit has been exceeded, the employer may terminate the relationship, subject to the right to compensation for notice.
Moreover, Law 300/1970 (Workers’ Statute) in Article 18 goes into the merits of the termination of employment: the rule protects the worker from dismissals announced in violation of Article 2110, second paragraph, of the Civil Code, providing the right to reinstatement in the workplace.
Over the years, several Supreme Court rulings have made headlines regarding the exceeding of the sick leave period and have clarified that the employer must consider the specific situation of the employee and evaluate possible alternatives before proceeding with dismissal.
In addition to the case that gained media attention of an employee dismissed when only a few days remained before the end of the sick leave period (Supreme Court Ruling No. 24766/2017), here are some rulings that have made history:
To avoid legal disputes, the employer must carry out careful checks before taking disciplinary measures. In particular, they must:
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The negative implications of criminally unlawful acts on the proper execution of work performance, in compliance with the employee’s obligations, constitute just cause for dismissal.
The Supreme Court, in ruling no. 31866 of December 11, 2024, established that unlawful conduct outside the workplace may have disciplinary relevance, as the employee is not only required to perform the assigned tasks but also, as an ancillary obligation, to refrain from engaging in behaviors outside the workplace that could harm the employer’s moral and material interests or compromise the relationship of trust. If such conduct is of a particularly serious nature, it may also justify dismissal for just cause.
As is well known, Article 2119 of the Civil Code defines just cause for termination as “a cause that does not allow the continuation, even temporarily, of the employment relationship.” This means an event, attributable to one of the parties, of such severity that any alternative to immediate termination would be inadequate to protect the interests of the terminating party.
The concept of just cause is rooted in the broad scope of its definition and is classified among the so-called “general clauses” (Supreme Court ruling no. 10964 of May 8, 2018). It is an open-ended concept that requires interpretation through the assessment of factual elements (including the evolution of social awareness and the perception of the severity of certain events) and legal considerations.
As stated by the Supreme Court, “just cause for dismissal is a concept that the law, in order to adapt regulations to a complex and ever-changing reality, defines through a provision (classified among the so-called general clauses) with limited content, outlining a generic model that requires specification through interpretation by considering both external factors related to general awareness and the principles implicitly referenced by the provision itself” (Supreme Court, September 30, 2022, No. 28515).
Moreover, it has been recently reaffirmed that the consideration of external factors related to general awareness is an integral part of the interpretative process (Supreme Court, August 22, 2024, No. 23029).
In outlining the types of employee behavior that may constitute just cause for dismissal, case law has established that the breach of trust may result either from a violation of contractual obligations or from off-duty conduct.
An employee is required not only to fulfill contractual obligations but also to adhere to ancillary behavioral duties, which, even outside the workplace, mandate the protection of the employer’s moral and financial interests. Violating these obligations undermines the trust necessary for the proper continuation of the employment relationship.
For example, in several cases, the courts have deemed violations of the so-called “minimum ethical standard” as just cause for dismissal. This refers to conduct that any reasonable person—including the employee—should recognize as contrary to the fundamental principles of civil coexistence, fairness, and good faith.
One significant case involved the dismissal for just cause of a school bus driver following a final criminal conviction for engaging in acts unequivocally aimed at causing the termination of his partner’s pregnancy. The Supreme Court of Cassation upheld the legitimacy of the dismissal, citing the objective severity of the offense and its social disvalue, which directly impacted the employer’s public image (Supreme Court, April 3, 2024, No. 8728).
Similarly, the off-duty possession of a significant quantity of narcotics for trafficking purposes was considered to seriously affect the employment relationship, particularly in terms of the employee’s future reliability. The Supreme Court ruled that an employee is required not only to perform their assigned tasks but also to refrain from behaviors—outside the workplace—that could compromise the trust-based relationship with the employer, which is subject to the assessment of the trial judge (Supreme Court, August 6, 2015, No. 16524).
In that case, the Supreme Court upheld the lower court’s decision, which had deemed the employee’s conduct particularly severe in terms of future reliability. The employee, a “chef de rang” at a thermal resort, was responsible for room service, a role involving frequent contact with guests. The court found the conduct even more serious given that the drugs were purchased from a colleague.
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Article 33 of Law 104/1992 regulates paid leave ‘for the assistance, social integration and rights of disabled persons’.
These permits consist in the possibility for public or private, full-time or part-time employees to be absent from work, while retaining the right to remuneration and figurative contribution coverage for pension purposes, in order to assist a disabled person in a situation of seriousness, who is not hospitalised on a full-time basis.
A ‘disability in a situation of seriousness’, pursuant to Article 3(3) of Law 104/1992, is defined as a single or multiple impairment that has reduced personal autonomy, related to age, in such a way as to require permanent, continuous and comprehensive assistance in the individual sphere or in the sphere of relationships.
Continue reading the full version in Modulo Contenzioso 24 of Il Sole 24 Ore.
The Court of Cassation, with Order No. 1364 of 20 January 2025, clarified important aspects relating to the obligation of repêchage in the event of dismissal for justified objective reasons. In particular, the Court of Cassation – excluding the reinstatement of the employee – ruled that the obligation of repêchage does not require the employer to relocate the employee to lower tasks in the workforce if there are no tasks compatible with the dismissed employee’s professional profile.
The case originates from an appeal brought by an employee, who held the position of export salesman, who was dismissed following the cancellation of his position. Challenging the dismissal, the worker claimed that the company had not adequately explored all the possibilities of outplacement within the company, thus requesting reinstatement.
In the course of the proceedings, the Court of First Instance had held that the dismissal was unlawful from a procedural point of view, and had also recognised that the repêchage obligation had not been complied with. However, the Supreme Court, reforming the first instance ruling, established that the search for alternative duties should not extend to positions that are not strictly compatible with the employee’s professionalism.
Continue reading the full version published on Norme & Tributi Plus Lavoro.
