Employee control
Personnel management is a company activity that is as complex as it is delicate, above all because some anomalous behavior of the workers can seriously undermine the trust granted by the company.
Unfortunately, the employees of a company do not always carry out their duties conscientiously and it is therefore of vital importance to promptly identify violations of the obligation of corporate loyalty in order to stem phenomena of: unfair competition, theft, embezzlement, absenteeism, false illness , abuse of the permits provided for by Law 104/92.
One of the most frequently asked questions is the following: is it possible to carry out private investigations on one's employees?
It is possible to give the mandate to a private investigator to investigate an employee: the Supreme Court has declared private investigations on employees lawful, but has highlighted limits and conditions to prevent this control by the employer from violating privacy. of the worker.
First of all, it is important to remember that the employer has the right to control his employees but in doing so he must comply with some principles regarding the protection of personal data:
1) Principle of necessity: investigations must be necessary or indispensable.
2) Principle of purpose: the investigations must be aimed at guaranteeing the security or business continuity, at preventing or repressing offenses.
3) Principle of proportionality: the employer must adopt forms of control that are proportionate and do not exceed the purpose of the verification.
4) Principle of security: data collected through private investigations must be adequately protected.
The Court of Cassation with sentence no. 15094/2018 established that it is legitimate to give an investigative mandate to a private investigator to carry out investigations outside the company walls and outside working hours. of the employee. In fact, in the event that, for example, the worker carries out acts outside of work that may in some way harm the company for which he works, the employer is entitled to appoint a private investigator in order to verify the unlawful conduct and establish the relative sanction to be borne by the employee.
The Supreme Court, in the aforementioned sentence, also specifies that the employer's power to resort to private investigations can be exercised in two cases: in the presence of clear evidence of wrongdoing on the part of the worker, or in the face of a simple suspicion that the an offense by the employee may have been committed or is about to be committed.
Law 300/1970 refers to a principle guaranteed by the Constitution: the protection of the freedom and dignity of workers. But the statute does not protect workers in an absolute manner, as the worker still has duties to perform, for example, according to the Supreme Court, using the permits provided for by Law 104/92 for personal reasons is a crime. Therefore, committing an offense means not observing fundamental duties such as that of loyalty and respect for the employer's assets. The control carried out on the employee who is believed to have abused the aforementioned permits represents for the employer an instrument of defense of his own interests and consequently of the company assets.
The Court of Cassation with the sentence, n.6174 / 2019 has established which are the rules that the employer is required to respect, if he intends to appoint a private investigator and not to incur the violation of the privacy of his employee.
In this sense, private investigations can be considered legitimate and do not violate the employee's right to privacy if:
1) carried out in public places, that is, for example not in the offices of a company, nor inside the home of the worker, therefore where there is no prohibition of interference in private life.
2) If they do not concern facts unrelated to the work activity: for example, it is forbidden to follow an employee on a mission to check how he behaves with customers or suppliers, while it is lawful if done in order to verify if the employee is actually carrying out the tasks that have been given to him by his employer.