Privacy of Employees: Italy First in Europe

So-called "defensive" checks are checks put in place by an employer in a hidden way, and therefore not known to the worker, with the aim of promptly ascertaining an offense for which the employer has a well-founded suspicion.
It is an institution that has its origin in Italian jurisprudence and finds no mention in the law and, in particular, in Art. 4 of the Workers' Statute (Law no. 300/1970, reformed by Art. 23, Paragraph 1, Legislative Decree no. 151/2015) which regulates employers' remote monitoring of workers' behavior.
The labor law debate on defensive controls was born as early as the 1970s in the face of the need, understandable and felt above all by the jurisprudence on the merits, to carve out a space free from the limits set out in Art. 4 of the Workers' Statute, for the employer who had to verify a suspected illegal conduct by an employee.
In particular, the jurisprudence had recognized that the irrepressible need to avoid unlawful conduct by employees could not justify a substantial cancellation of any form of guarantee of the dignity and confidentiality of the worker, and that, therefore, defensive checks were legitimate only if relating to unlawful conduct by employees capable of harming "assets unrelated to the employment relationship" (Court of Cassation February 23, 2012, no. 2722).
More recently, the 2015 reform of Italian labor law, which radically changed the text of Art. 4 of the Workers' Statute, has rekindled the debate about the opportunity to continue to carve out a space of legitimacy for remote controls done outside the purview of the article itself: defensive controls, in fact.
On 22 September 2021, the Court of Cassation ruled on this issue for the first time since the entry into force of the so-called Jobs Act.
The Court recalled the consolidated principle according to which the employer's powers of control must find a balance with the employee's right to privacy, and according to which the employer's interest, albeit worthy of protection, in fending off major forms of illegal misbehavior by workers cannot be taken as an excuse to justify the substantial annulment of any guarantee of dignity and confidentiality for employees.
Having said that, the Court affirmed that only so-called defensive checks stricto sensu are legitimate, i.e. checks aimed at ascertaining unlawful conduct "ascribable - on the basis of concrete evidence - to individual employees" and which cannot pertain to the fulfillment of the ordinary obligations arising from the employment contract, but only to forms of illegal conduct potentially harmful to the company's assets.

It would not make sense, the Court reiterated, to require the employer to comply with the negotiation procedure with union representatives or the procedure for requesting administrative authorization, in the face of extraordinary events which require the employer to react quickly in order to immediately ascertain offenses that could endanger or compromise the company's assets.
The ruling, therefore, confirms the survival of an area, albeit limited, of legitimacy of the defensive checks done by firms and recognizes the need, not otherwise protectable, of the employer to proceed quickly (and possibly secretly) to establish if suspicions are founded, in order to allow him a reasonable margin of reaction, which would be compromised if one were to proceed according to the procedure pursuant to Art. 4.

The ruling, which was particularly awaited, thus redraws the boundaries of the jurisprudential institution of defensive checks, something which constitutes an Italian unicum compared with the legal discipline of the matter in other EU countries, which do not present a similar treatment of the issue. This can be easily explained if one considers that Italian jurisprudence had to coin the institution of defensive checks, in order to respond the legal regulation of remote checks in the workplace with dates as far back s 1970. From this point of view, Italy probably was the first legal system to legally establish a specific protection of the privacy of the worker, well before the adoption of the privacy regulations at the European level, and well ahead of all other EU countries.