Video surveillance: it is not a crime if you protect the company’s assets

With judgment no. 3255 of 27.01.2021, the Italian Court of Cassation recognized the lawfulness of  a video surveillance system strictly functional to the protection of the company’s assets, even if it is installed in the absence of a trade union agreement or the authorization of the Labour Inspectorate.

The case concerned the use by the employer of a video surveillance system facing the shelves and checkouts present in the store and installed after noticing a lack of goods from the warehouse. However, the adoption of the video system had not been authorized by the Labour Inspectorate, nor had agreement been reached in advance with the trade union representatives.

The entrepreneur was then convicted by the Court of Viterbo for installing a system for remote control of employees in violation of the rules laid down in Law No 300/1970 (Workers’ Statute).

As a matter of fact, on the basis of art. 4 of the Workers’ Statute, “Audiovisual installations and other instruments, from which the possibility of remote control of workers’ activities also derives. may be used exclusively for organizational and production needs, for job security and for the protection of the company’s assets and may be installed by collective agreement concluded by the unitary trade union representation or the company trade union representatives.” In the event of a lack of a trade union agreement, the employer may use these control instruments only with the authorization of the National Labour Inspectorate.

These provisions are intended to safeguard the dignity and confidentiality of the worker, by punishing all conduct potentially capable of damaging the worker’s freedom to perform his work. In particular, the installation of video surveillance systems without the required authorizations constitutes a crime punishable by Article 38 of the Workers’ Statute itself.

However, over the years, case law has been called upon to seek a balance between the rights laid down in the Workers’ Statute, to which constitutional importance is recognised (Articles 1, 3, 35 and 38 Of the Cost.), and the right to free exercise of entrepreneurial activity, also of constitutional rank (Art. 41 Cost.).

Thus, the applicability of Article 10 of the Directive was excluded from the mentioned art. 4 of the Workers’ Statute in the case of the so-called defensive controls by the employer, i.e., those controls aimed at ascertaining the commission of wrongdoing by the worker. In fact, if the worker performs conducts which could be penally prosecuted or punishable by dismissal, it no longer seems justified to take precautions to avoid general scrutiny of the employee.

In the case settled by the Cassation, the entrepreneur claimed to have installed the video surveillance system only as a result of the found lack of goods and not to control the ordinary performance of the employees’ work tasks, so much so that the cameras were aimed only at the checkouts and shelves.

On the basis of these considerations, the Court annulled the conviction against the employer, stating that it is not illegal to use a video surveillance system for purposes strictly functional to the protection of the company’s assets, even if installed in the workplace in the absence of a trade union agreement and or authorization of the Labour Inspectorate.

In such cases, there is no crime provided for in Article 38 of the Workers’ Statute but only on condition that the use of the system does not imply a significant control over the ordinary performance of the employees’ work activity or provided that it is a reserved use and aimed at allowing the detection of serious unlawful conduct of the employees themselves.