The Court of Padova (Italy), with the Ordinance n. 6031 of 4 October 2019 took stock of the conditions of lawfulness of the investigations on employees. The use of private agencies by the employer and the usability of their work in court requires careful observance of limits, which are constantly updated, given the evolution of the regulations governing the interests involved and the interpretation that jurisprudence offers some.
The survey commissioned by the employer to investigative agents falls within the hypothesis of “employment of personnel responsible for supervising the work activity”, with respect to which article 3 of the Workers’ Statute delimits the sphere of intervention of the employer (the Article 3 in fact provides that the names and specific duties of the personnel responsible for supervising the work activity must be communicated to the workers concerned).
According to the extensive interpretation that the now consolidated jurisprudence has developed of this provision, the prohibition of covert control sanctioned by the law does not operate when the use of private investigations is aimed at verifying behaviors that may constitute illegal conduct or even only the suspicion of their realization. (Cassation, judgments 4984/2014 and 15094/2018).
The control of the investigative agencies must not cross over into the supervision of the employee’s actual work activity. In particular, it must not consist in checking the diligent fulfillment of duties, which is reserved directly to the employer and his collaborators. Investigations, on the other hand, must concern behaviors that have relevance not as a mere breach of contract, but as autonomous offenses: civil, administrative or criminal.
The jurisprudence recognizes as verifications of unlawful conduct (perpetrated or suspected) that allow recourse to the investigative agency:
those relating to the non-work activity carried out by the employee in violation of the prohibition of competition, which is a source of damage for the employer (Cassation, judgment 12810/2017);
those concerning the improper use by the employee of the permits provided for in Article 33 of Law 104/1992 (Cassation sentence 4984/2014);
the behaviors adopted during an illness, where the controls must not concern the health aspects (precluded by article 5 of the Workers’ Statute) but the non-working conduct that certifies the non-existence of the illness or the state of inability to work (Cassation, sentence 12810/2017);
those relating to the performance during working hours of paid activity in favor of third parties (Cassation, judgments 5269 and 14383 of 2000);
the attestations with which the employee affirms his / her presence in service against part-time work provided instead (Cassation, judgment 14975/2018).
The principle is that of the so-called defensive controls, which the case law has then extended to the interpretation of Article 4 of the Workers’ Statute on remote controls, in the text prior to the reform that took place with Article 23 of Legislative Decree 151/2015.
The considerations relating to the relationship between the new wording of Article 4 and defensive controls do not involve Article 3 of the Workers’ Statute and therefore the issue of recourse to investigative agencies. The regulatory system provided for by the reformulated Article 4 concerns in fact the specific controls of workers through the installation of audiovisual systems and technological tools. Among other things, the text of Article 3 has not been changed by the reform.
The different field of application leads to exclude that the use in court of the photographic material of the investigation report is regulated by Article 4, paragraph 1, of the Statute, which concerns systems “installed” by the employer.
The requirements of the assignment
It is essential that the assignment to the investigative agencies is given in writing. Their work must comply with the privacy legislation and the case law of the European Court of Human Rights on the subject.
Verifications by investigators must respond to the need to ensure the protection of rights. The control activity must not be the result of an arbitrary initiative by the employer and must not concern a group of workers without distinction.
The investigation tool used must be the least invasive of those available and the controls must be implemented with tools that are proportionate to the goal achieved. Finally, the data collected must be processed by the recipient and the person conferring the assignment and the investigations must be completed within a reasonable pre-established time.
The admissibility of the assignment
Verification of illegal conduct
The first condition for the eligibility of the employer to use private investigators is that there is