January 7, 2020
Investigations, the Court of Padua takes stock of the lawfulness of the investigation of workers by Editorial board
The employer can commission a private investigation agency to monitor an employee’s behaviour, but only within certain limits
With decree 6031 of 4 October , the Court of Padua made further clarity on a rather thorny issue, namely that of the lawfulness of private employee investigations . The employer can use a private investigator to check on an employee , provided that certain conditions and limits exist. First of all, there must be an effective need to verify any illegal conduct by employees. The assignment must be given in writing and cannot relate to a group of workers without distinction.
Secondly, the investigator’s work must comply with the privacy legislation and case law of the European Court of Human Rights in this matter . The data collected must be processed exclusively by those who receive the assignment and those who confer it. Furthermore, investigations must be as least invasive as possible and conclude within a reasonably defined time.
Specifically, however, the judges determined above all the range of action in which employer and detective can move . The investigation commissioned by the employer to an investigative agency falls within the hypothesis of “employment of personnel assigned to supervise work”, with respect to which article 3 of the Workers’ Statute defines the sphere of intervention of the employer of work. In this sense, investigations carried out with the help of a private investigator must concern illegal conduct that has relevance in the civil, administrative or criminal sphere . This definition includes for example: the violation of the prohibition of competition, the improper use by the employee of the permits of law 104, the verification of the veracity of the state of illness of the worker, the performance of paid activities in favor of third parties during the working hours, the veracity of the attendance certificates.
The control of employees by means of a private detective is instead prohibited if his activity is aimed at verifying the correct fulfilment by the worker of his duties . According to the provisions of the Workers’ Statute, control over the employee’s actual work is the exclusive responsibility of the employer and his collaborators.