Defense controls and usability of the evidence collected for disciplinary purposes
In the recent ruling no. 22662 of 8 November 2016, the Supreme Court has again ruled on the legality of the so-called “defense controls,” or the controls (implemented in various ways: for example, in this case, a video camera) aimed not just to verify the exact fulfillment of the obligations arising directly from the employment relationship, but to protect the company’s assets and / or to prevent the commission of unlawful conduct.
The underlying legal issue concerns the application of Article. 4 Stat. Lav. and the Supreme Court, despite having examined a case that occurred before the amendments introduced by Legislative Decree. n. 151/2015, affirmed a consistent principle even with the new wording of that provision.
In fact, the Supreme Court has previously pointed out that the need for an agreement with the company union representatives or with the council was expected (in the previous art. 4 Stat. Lav., Second paragraph) if, through such controls, “also derives the possibility of a remote control of the activity of the workers”.
In this regard, please note that the new wording of art. 4 Stat. Lav., First paragraph, uses the same phrase (“also derives the possibility of a distance in the activity of workers”) of control, to identify cases in which the use of audiovisual systems and other tools, even if used for the protection of corporate assets and / or job security, is allowed only with the prior consent of the territorial union agreement or Directorate of Labour.
In addition, the Supreme Court pointed out that it must be considered above the orientation under which defense checks are legitimate, regardless of their degree of invasiveness, indicating that the so called “unintentional control” is subject, also, to the limitations established by art. 4 Stat. Lav. whereas surveillance could also relate to the performance of work and is implemented with potentially harmful instruments in the personal sphere.
In the case examined, the employer had placed a camera in the reception to check the safe and placed it there to protect the safety of workers operating nearby, a possible target for offenders.
From the records it was found that a female employee had stolen an envelope containing money from the safe, withdrawing it from a slit with a letter opener.
The trial court, investigating the matter, had found a violation of Art. 4 Stat. Lav. by the mere fact that, through the camera, use of the camera allowed to control of movement of workers in the workplace, outside the performance provided, resulting in inoperability of the movie for disciplinary purposes.
The Supreme Court then noted misapplication of Article. 4 Stat. Lav., as “the conduct of the worker reprimanded, the video not only not adhered to the service but did not differ in any way from that unlawful by any person external to the organization of work”.
In particular, the Supreme Court stated that the defense control implemented by the employer “didn’t adhere to the fulfillment of the obligations contained in the employment relationship, but it was intended to ensure a behaviour that put at risk the very security of the workers, as well as the company’s assets, determining the direct involvement of the employer’s right to protect their companies through the instruments related to the exercise of the powers resulting from its supremacy on the corporate structure”.
In light of the above, it is therefore necessary to verify, in each case, the concrete ways in which it is used as a control tool, in order to assess the possible infringement of Article. 4 Stat. Lav. and thus the usability of the evidence for disciplinary purposes.