Il controllo a distanza dei lavoratori: precedenti nella giurisprudenza di ieri decisi con le norme di oggi

Abstract

Last September, the legislation concerning remote monitoring of employees underwent a reform (Legislative Decree No. 151/2015 which amended Article 4 of Law No. 300/1970, article 4).

The article aims at analyzing the practical effects of such reform. To this end, the article focuses on three case-law precedents, decided under the previous legislation, and hypothesizes how they could be solved in light of the new regulation.

The main issues examined are the following: - Limits to the gathering of evidence: according to the reform, evidence gathered through devices which allow for remote monitoring of employees can be used, as long as such devices have been lawfully installed in compliance with the requirements set out by Article 4 (prior agreement with works council or authorization from the local body of the Labour Ministry).

The article addresses the consequences in the event that the devices in question have been unlawfully installed. In particular, it discusses whether the employer is prevented from producing evidence so gathered in Court. - Under the new regulation, devices used by employees in the performance of their work activities is not subject to any prior agreement or authorization.

However, the definition of what constitutes a “device used in the performance of work activities” is not entirely clear. Thus, identifying what kind of devices can or cannot be installed without any prior formality remains uncertain.

As such, the article focuses on the issue of whether a personal computer can be considered a device falling within the scope of Article 4.

It also further examines whether hardware and software should be considered separate “devices” and whether they can be separately considered in order to assess whether the formal requirements of Article 4 should apply.

Monitoring of employees suspected of having committed unlawful acts affecting the employer’s assets (so-called defensive controls): the reform has now included such types of controls as falling within the scope of Article 4. Prior to the reform and according to consistent case-law precedents, the same types of controls were not considered subject to any prior requirement.

The article analyses the potential implications of this new provision on the jurisprudence relating to defensive controls.