by Marcello Giustiniani and Vittorio Pomarici
Bonelli Erede Pappalardo
Under Italian law, conducting investigations on employees is subject to certain limits. If these limits are not respected, the employer cannot use any evidence collected for disciplinary purposes (and may be subject to criminal or other sanctions).
The following are some examples of limits that often tend to recur:
Personal opinions and technical devices:
- Inquiries into an employee’s political, religious, or trade union opinions, or about facts which do not concern the employee’s professional aptitude, are prohibited;
- Technical devices that monitor the activity of employees are only permitted when required for organizational production, or safety reasons, and provided that an agreement with the works councils is reached (or a specific authorization is obtained from the labour office) as to the use of the devices.
Therefore, an investigation conducted by means of any of the abovementioned instruments would be deemed lawful only provided that:
- Employees have been given specific instructions (often contained in a company’s policy) on the use of the internet, email, and telephone, and clearly limiting the use of these instruments only for work purposes, and are informed that the employer may monitor their use;
- The monitoring is only made to verify whether the instruments are used for purposes other than those that are work-related;
- The instruments are used in accordance with the modalities agreed with by the works councils or set by the labour office.
Security guards can only be hired to protect the company assets; they are neither permitted to monitor employee job performance, nor can they access the company premises during work hours unless there are specific and motivated security reasons for doing so.
By contrast, employers are free to appoint private investigators to check possible breach by employees of their contractual duties outside the workplace (i.e. whether employees take up employment whilst on sickness leave or for a competitor).