Remote control of workers in Italy using a detective agency: different legitimacy profiles

Less settled and, indeed, rather debated in doctrine and jurisprudence is what may in fact be subject to control.

This controls, of course, take place in a hidden form since workers are not - and must not be - informed in advance of their activation since, otherwise, they might undertake measures to elude it: this is essential for the controlling activity itself to pursue its primary purpose, i.e., to ascertain the illegal acts committed by the worker. 

It is therefore essential to distinguish when an act may be considered illegal and, as a result, justify hidden controls. 

What is certain is that mere breaches of contractual obligations in the working performance should be excluded from the scope of illegality: such breaches can only be verified by the employer itself or by the surveillance personnel, whose names and specific duties the employees must necessarily know - following a special employer's communication - (pursuant to Article 3 of the Workers' Statute).

Equally, the controls in question fall outside the scope of Article 2 of the Workers Statute, which regulates the defense of company's assets by means of security guards; also irrelevant is the provision in Article 4, which regulates controls by means of audiovisual and/or electronic instruments and equipment. 

It is therefore necessary to focus on the prevailing jurisprudential orientations, since - it should be recalled – courts are the places where the concept of  'defensive control' originated: recently, the Italian Supreme Court, with its decision no. 6468 of 12 March 2024, considered legitimate the disciplinary dismissal of a worker for unjustified absence ascertained by means of controls carried out by an investigative agency following anomalous walking away from the workplace, which occurred concurrently with the use of paid leaves pursuant to Article 33 of Law no. 104/1992 provided for the assistance of infirm parents.

The employee had objected to the unlawfulness of the use of the external investigation agency, arguing that the controls carried out by the agency were aimed exclusively at verifying his working performance.

The Italian Supreme Court took the view that the worker's complaints were unfounded, arguing that the control delegated to the investigating agency is legitimate where it does not concern the working performance, but is aimed at verifying a conduct that may constitute a criminal offence or fraudulent activities, “as in the case of a control aimed at ascertaining the improper use by an employee of paid leave pursuant to Article 33 of Law no. 104/1992”.

The Court also clarified that the reference made by the employee's defense to the decision no. 25287 of 24 August 2022 of the same Court was not relevant, since -although pronounced in a case factually connected to the one examined- in this case the abusive use of paid leaves pursuant to Law no. 104 of 1992 was not contested. The decision of 2022 namely regarded a case of dismissal of an employee who was accused of having left the workplace -during working hours- for activities outside his job description, since meetings unrelated to the activity and the place of work (e.g., at supermarkets and gyms) had been recorded by means of controls carried out by a detective agency.

In the second case, therefore, the external controls by means of an investigative agency have been deemed unlawful as they have concerned the employee's performance of his working activity and not, as in the case of the Court’s decision of last March, a fraud against the I.N.P.S. (Italian National Social Security Authority) - and therefore a criminal offence - such as the failure to actually use the paid leaves pursuant to Law No. 104/1992 for the intended purposes. 

Returning to the case examined, the undue use of paid leaves pursuant to Law No. 104/1992, falls within the field of illegal acts since, as stated above, it constitutes both fraud against the I.N.P.S. and abuse of the rights granted by the law for unauthorized personal purposes (as well as the irreparable damage to the fiduciary bond between employer and employee). Therefore, the employee not only violates the provisions the employment contract and the company regulations, but also commits fraud against the social security institution, fraudulently using resources and facilities intended for situations of real need such as assistance to a disabled family member.

Recently, the Labour Court of Rome, by its decision of 14 March 2023, also ruled on employer controls carried out with the assistance of an investigative agency. In the case in question, a worker was dismissed for non-performance and irregular work on eighteen occasions in the course of three months; the employer had found that the employee's working hours had not been respected, that he had unjustifiably left the workplace, that personal activities had been carried out during working hours, and that certain company assets had been used for private purposes not inherent to the performance of his working duties. The judge, rejecting entirely the employee's appeal, held that the employer may carry out controls, also with the help of external parties, aimed at verifying the occurrence of illegal conduct, albeit not criminally relevant, such as, for example, the employee's false statement of presence or leaving the workplace for private purposes.

However, the content of the decision above is in clear contrast with the Italian Supreme Court’s decision and -more generally- with the most recent jurisprudential orientations. The Roman judge reiterated that the prohibition against resorting to controls by means of investigation agencies is limited to the mere verification of the employee's performance or non-performance of his working duties but, despite this, he considered absences from the workplace to be a conduct that legitimized the private investigation, even though it was to all intents and purposes a breach of contractual obligation. Strictly speaking, in this case the controls could have been exercised only by the employer or his collaborators included in the hierarchical organization of the company, since it focused exclusively on the mere verification of working performance (the worker's presence on the company premises and the regular performance of the working tasks assigned to him). 

It results clear from the aforementioned that in such cases -what actually interests the interpreters- is the constant search for the illegal act or, at least, the well-founded suspicion of its realization. As widely argued by the majority doctrine, the legitimacy of hidden controls on the illegality of acts committed by workers runs the risk of becoming an expedient for admitting any kind of surveillance: in fact, it is certainly not easy to separate investigative activity from the control of working activity when trying to determine any illegal conducts committed during the performance of the latter. Illegality that, moreover, can only be ascertained retrospectively from the start of the control.

Yet, as the Roman Court's ruling testifies, the orientation of the jurisprudence is not unambiguous and the limits within which recourse to an investigative agency is legitimate are clear in theory, but vague in practice. While on the one hand the jurisprudence insists on the principle that working activity cannot be the subject of controls, on the other hand it clamorously contradicts itself when it legitimizes the use of investigators to surveille compliance with working hours.

In some cases, the Italian Supreme Court seems to have adopted a restrictive interpretation, limiting the illegal conduct to an act which is criminally relevant, or which integrates fraudulent activities, as stated in the decision of last 12 March. A more extensive interpretation would risk including in the scope any breach of duty not strictly related to the working performance or any conduct that may damage the employer's interests.

Even the orientations of the Italian Supreme Court, although apparently consolidated in the direction of the more general principle of the " illegality " of the conduct as the only legitimizing prerequisite for defensive controls, lead to a necessary reflection: by way of example, in some cases the controls are justified in the presence of a "serious conduct, capable of undermining the employer's trust" (see Decision of the Supreme Court of 23 June 2011, no. 13789), in others in the case of "illegitimate conduct carried out outside working hours, which is disciplinarily relevant and a source of damage for the employer" (see Decision of 22 May 2017, no. 12810) and further, as seen, in "criminally relevant hypotheses". But it is also true that conduct damaging the fiduciary bond may certainly constitute serious conduct towards the employer, but at the same time not automatically constitute a criminal offence. 

The legal and jurisprudential framework concerning the use of investigative agencies to control employees is therefore quite complex. One possible alternative is the direct verification of performance by the employer -as he is entitled to control even outside the company premises- without the need to resort to external parties: a solution that is often completely unnecessary as well as more costly. In fact, there is no impediment for the employer to personally visit places where he believes the employee is during working hours, to personally ascertain the contractual breach. In conclusion, the use of investigation agencies must be limited to investigations of situations that are already highly compromised, together with a well-founded suspicion that actual offences have been committed.​