Defensive monitoring of employees through GPS

Facts
Decision
Comment


The Supreme Court recently issued a decision (20440/2015) which clarified a number of points regarding Section 4 of the Workers' Statute (Law 300/700).

Facts

The case involved the dismissal of an employee who coordinated waste disposal workers, had use of a company car and worked from 6:00am to 12:30pm.

The employee was fired for leaving his workplace and going to a local cafe from approximately 6:30am to 11:00am for non-work activities (a break was scheduled between 9:00am and 9:10am). The trial court upheld the dismissal, but the employee challenged the decision on the grounds of:

• the delay between the breach of discipline occurring and disciplinary action being taken; and
• violation of Section 4 of the Workers' Statute.

Decision

Regarding the delay in disciplinary action being taken against the employee, the Supreme Court noted that the law sets no time limit in this regard, but that under the good-faith principle (Section 1375 of the Civil Code), the gap between an alleged breach of discipline occurring and disciplinary action being taken must not hinder the accused from defending himself or herself. In this case, the disciplinary action was taken approximately one month after the incident, which did not jeopardise the employee's ability to defend himself.

Regarding the second ground, the Supreme Court stated that Section 4 (as well as Sections 2 and 3) of the Workers' Statute relates to monitoring "the fulfilment of employee obligations", rather than behaviour which could damage the employer's corporate assets and image. Therefore, defensive monitoring that relates to a "specific employee's deficiencies and behaviour outside the scope of working activity as well as any illegal activity" is allowed.

This principle applies specifically when work "must be performed outside of company premises or in places where it is easier to impair the fulfilment of work obligations and damage the company's image without the employer's knowledge". The principle applies even when monitoring is carried out by private investigators (Article 3 of Law 300/70) or Global Positioning System (GPS) satellites to track the movements of a company car used to perform employment obligations, as happened in the case in question.

Comment

The Supreme Court decision is consistent with previous case law regarding delays in disciplinary action being taken and defensive monitoring, although it was made before the recent reform of Section 4 of the Workers' Statute (for further details please see "First impression of recent labour law reforms").

The decision helps to clarify the concept of a work tool. Under the law, a company car and its GPS may be qualified as work tools because they aid the performance of employment obligations.

Notably, the decision made no reference to the Data Protection Code (Decree-Law 196/2003). The changes to Section 4 of the Workers' Statute provide that information gathered pursuant to Sections 4(1) and (2) can be used for any purpose relating to employment, provided that employees are given adequate information on:

• how the work tools in question are used;
• how checks are carried out; and
• whether this activity complies with the Data Protection Code and relevant data protection rules.(1)

For further information on this topic please contact Andrea Stanchi at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (a.stanchi@stanchilaw.it).

Endnotes

(1) The Data Protection Authority provides specific rules regarding the use of GPS (Section 37 of the Data Protection Code). For further details please see www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3534543.