Background
According to section 4, paragraph 1, of law no. 300/70, an employer is not allowed to use audiovisual equipment or any other device which is aimed at the remote monitoring of an employee's activities.
Furthermore, paragraph 2 of section 4 states that the use of equipment which is primarily aimed at carrying out other functions, but which may also monitor an employee's activity, may be allowed only under the following circumstances:
- where the use of such equipment is required for organisational or productivity reasons or for safety requirements; or
- where the employer has reached an agreement with the trade union representatives for the use of such devices. In the absence of such agreement, the employer may file a request to the 'Direzione Provinciale del Lavoro' (the local Labour Authority) asking for authorisation to install such equipment.
Italian Courts' decision
The Italian Courts have always adopted a very strict interpretation of these provisions.
Any equipment which, even just potentially, allows employee monitoring falls under the scope of Section 4 of Law. no. 300/70 (Court of Cassation no. 9211/1997).
In other words, even if the employer does not intend to use such devices for monitoring the employees' activity, if the equipment is potentially able to monitor the employees, the provisions stated under section 4 of law no. 300/70 will apply.
Furthermore, the Italian Court of Cassation has recently stated (decision no. 4375/2010) that the employer's right to defend itself against any unlawful behaviour by employees cannot prevail over the employees' rights of dignity and privacy.
This principle applies especially when the employees' potential unlawful behaviour concerns the exact fulfillment of their duties (by way of example, the respect of the working hours) rather then the safeguard of company goods and values.
Consequently, all data and information obtained by the employer through equipment in breach of the law cannot be used in any way against the employee.
Effects on employers
According to the aforementioned law and Court judgments, employers:
- cannot use any device for the purpose of monitoring their employees' activity;
- can use equipment that may, incidentally, monitor their employees' activity only if there is an agreement with the trade unions or authorisation by the Direzione Provinciale del Lavoro;
- cannot use any data or information collected with equipment used in breach of the above rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
