The agreement of single workers does not legitimize remote control of workers by the employer

The management of work relationships in a company entails opposing needs, such as protection and preservation of security and business image and wealth on one side and respect of privacy and workers on the other side.

The expression of this dichotomy is above all in the law of remote control of workers, as it is provided for in art. 4 of the Worker’s Statute (Law 300/1970), which has been amended by the reform introduced by implementation decree 151/2015 of Jobs Act.

The text introduced after the reform provides basically for the possibility for the employer to use instruments which allow the remote control of the workers’ activity on a dual condition:

1) instruments are used to meet organizational and production needs, for job security and for the protection of business wealth;

2) the use of such instruments is preceded by a union agreement, or in the absence of an agreement, by an authorization of the National Labour Inspectorate.

On the other hand, the instruments used by the worker to perform the work and instruments for the registration of accesses and presences are specifically excluded from the necessary compliance with these substantive and procedural requirements.

Therefore, the interpretative difficulty lies in assessing, on a case-by-case basis, whether the instruments at issue are “strictly functional to work performance, also in terms of safety”, such as the e-mail service made available to employees by assigning a personal account , the connection to the Internet or “the systems and measures that allow its physiological and safe operation to ensure a high level of security of the company network made available to the worker” (see Provision of the Italian Data Protection Authority No. 303/2016) , or, on the contrary, if they are instruments whose use meets additional needs.

In both cases, the processing of data collected in this way cannot be separated from adequate information of the worker and from compliance with the provisions of Legislative Decree no. 196/2003 (Privacy Code).

During the years, there have been many jurisprudential pronouncements aimed at defining the contours of the power of control by the employer, thus creating a wide debate in the concerned environments.

One can refer to the category of jurisprudential creation of the so-called “defensive controls”, i.e. those controls established by the employer in order to ascertain the fulfillment of any illegal conduct likely to endanger the security of business wealth. The legitimacy of these controls, even in the absence of a union agreement or any authorization procedure, was last reaffirmed by the Civil Court, with awards no. 10636 of 2 May 2017 and no. 26682 of 10 November 2017, obviously provided that such inspection activities do not concern the exact fulfillment of the work activity and are carried out in ways that are not excessively invasive.

Apart from these expressly admitted cases, the field of enforcement falls again into the first paragraph of article 4 of the Statute.

A recent interesting pronouncement of the Penal Cassation of 31 January 2017, no. 22148, which carried out a revirement of the previously established principles, falls into this line.

The Supreme Court affirmed that it is to be considered criminally illicit the use of instruments which entail the possibility of an indirect control of the worker’s activity in the absence of union agreement or administrative authorization, even if previously authorized in any form by all the workers “uti singuli”.

In fact, the Court observed that penal protection is aimed at protecting collective and superindividual interests, represented only by unions, nor the consent of individual workers, weak subjects of the employment relationship, can be discriminatory.

With this pronouncement, the Court of Cassation amended its previous line of judgement, affirmed by a sentence of 17 April 2012, no. 22611 which attributed the justifying value of the aforementioned offence to the provision of written consent by all the workers.

Beyond the applicative difficulty of the two distinct procedures provided for by art. 4 of the Workers’ Statute, from now on the employer will pay even more attention to the strict observance of the procedural requirements enforced by the legislation, under penalty of the application of severe administrative and penal sanctions, as well as possible consequences in civil purview for possible claims for compensation for caused damages.