Controls by an employer on an employee, done retrospectively, are allowed in order to ascertain whether a crime has been committed.
Court of Cassation, employment section, judgment no. 25977 of 16 November 2020
In the case in point, the employee (computer programmer) of a bank, was dismissed for just cause for sexual harassment of a colleague and for unauthorized access to her husband’s bank account, in order to view his bank balance.
The Bologna Court of Appeal upheld the legitimacy of the dismissal.
With particular reference to controls by employers, the Court of Appeal noted that «an employer is allowed to check whether its employees misuse the tools made available to them exclusively for work purposes».
The employee appealed to the Supreme Court arguing, among other reasons, that the court in first instance was mistaken in believing that the employer can verify the improper use of work tools, under the provision of Article 4, Law 300/1970 (with the wording in force at the time of the case) which prohibits the use of audiovisual and other equipment used for purposes of monitoring employees’ work from a distance.
The Court of Cassation, in rejecting the appeal, dwelt on the issue of defense mechanisms/controls by the employer.
As the judgment reads, «the disputed conduct (in the week from 23 to 27 March 2015, after obtaining the name of the colleague’s husband, having looked at the current account and then telling the colleague the balance in the account) was revealed by the company, following a request for clarification from the account holder».
According to the Judges, the subsequent checks carried out by the employer on the devices made available to the employee are legitimate and do not violate art. 4 of Law no.
300/1970, falling within the category of defensive controls that are outside the scope of application of the above rule. According to the Court «these were, in fact, checks aimed at ascertaining unlawful conduct that is detrimental to the company’s reputation and constitutes, in abstract terms, a crime (Court of Cassation no. 2722 of 2012; Court of Cassation no. 10955 of 2015)».
In the case in question, moreover, it was a matter of retrospective controls, i.e. after the alleged behaviour occurred, which as such were aside from mere supervision of the performance of the work.
Consequently, «the dignity and confidentiality of workers cannot be considered in any way compromised, since it is not logical to guarantee the worker, in the presence of illegal conduct punishable by criminal penalties or dismissal, greater protection than that granted to third parties outside the company (Cass no. 10636 of 2017)».
On the legitimacy of these controls in the case in question, the decision goes on to say, for the sake of completeness «that – in any case – there was a trade union agreement of 29 September 2014, aimed at regulating the procedures for carrying out controls pursuant to said art.4, which provided for the use by the company of the information extracted in the event of the existence of evidence of a crime».