Secretly records the board meeting: fired. “Legitimate sanction.” The judges’ restrictions.

Secretly records the board meeting: fired. “Legitimate sanction.” The judges’ restrictions.

by Filippo Salvo – Repubblica, 30/01/2025

filippo-salvo_10For the Italian court of Trento, the measure is admissible only in one case: when it is intended to assert one’s own right in court. But not always.

ROME – Fired for recording a board meeting without authorization—and without informing his colleagues. This happened to an executive who took the case to the Court of Trento. However, with ruling 172/2024, the judges confirmed the legitimacy of the dismissal. The recording, made without the knowledge of colleagues—not just of an ordinary conversation but of a board meeting—constitutes just cause for dismissal because it represents “a serious violation of the right to privacy,” as stated in the ruling. Such a violation could only be justified in one case, according to the judges of Trento: when the recording is made to safeguard the employee’s right to defense.

“This means,” explains labor lawyer Filippo Salvo of the Trifirò & Partners law firm, “that recordings do not violate the law when they are used within the framework of legal proceedings and solely to assert or protect a right.” Otherwise, they breach the bond of trust, which, as Salvo emphasizes, “is of utmost importance in managerial employment relationships.”

How Can an Employee Prove That the Recording Is Needed for Legal Action?

Does the employee need to have already initiated legal proceedings? Not necessarily. “To judge a recording as legitimate,” explains Salvo, “it is not necessary to wait for a lawsuit to be filed. The Court of Cassation has ruled that ‘the right to defense is not limited to the formal judicial setting but extends to all activities aimed at acquiring evidence that may be used in court, even before a dispute has been formally initiated through a summons or petition’” (Cassation ruling no. 28398/2022).

Evaluating Each Case

Thus, Salvo continues, “to determine the legitimacy of a recording, the judge must evaluate the specific circumstances of the case. The mere claim by the employee that the recording was made in the exercise of their right to defense is not sufficient. Instead, the audio recording must be genuinely instrumental to the judicial protection of a right.”

This is precisely what happened in the case in Trento, where the judges concluded that the recording was made “for interests not worthy of protection (most likely related to the complainant’s personal dissatisfaction with the CEO’s actions).”

A Precedent

A different case occurred in Genoa, Italy, a few years ago. In ruling no. 31204 of November 2, 2021, the Court of Cassation upheld the decision of the Genoa Court of Appeal, which found it justified for an employee to refuse participation in a mandatory training course. The employer had given only two days’ notice, and the course was over 100 kilometers away from the workplace. The employee recorded the conversation in which they refused to attend, intending to defend themselves in case of disciplinary action—which eventually occurred.

However, the right to record in the workplace without the other party’s knowledge also applies to the employer. There are rulings that have sided with a superior who recorded a conversation without the employee’s knowledge.

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