The Italian Supreme Court (Cassazione), with judgement no. 3255 of January 27, 2021, specified that the installation of an audiovisual or remote control system in the workplace, even if carried out without prior agreement with the legitimate trade union representatives or without the authorization of the Labor Inspectorate, does not constitute the offense referred to in art. 4 of Italian Law May 20 1970 n. 300, in the event that it is functional to the protection of company assets, "provided that its use does not imply a significant control over the ordinary performance of employees' work, or should remain" confidential "to allow the verification of serious illegal conduct of the same ".
Article 4 of the aforementioned law protects the right to privacy of workers, establishing, in fact, that audiovisual or remote control systems cannot be installed to control, directly or indirectly, their work activity, unless they are not notified in advance and that an agreement is not stipulated with the trade union representatives, or alternatively, the authorization of the Labor Inspectorate is obtained.
However, due to consolidated civil and criminal jurisprudence, and with a view to a fair balance between the constitutional rights of the dignity and freedom of the worker and that of the free exercise of entrepreneurial activity, it is believed that the applicability of the aforementioned article meets a limit where such systems are installed by the employer with the aim of carrying out defensive checks on the company assets and ascertaining unlawful behavior of employees, especially if "arranged ex post, that is after the implementation of the behavior in charge, so as to disregard the mere supervision of the execution of the work performance".
Furthermore, the Italian Supreme Court, in its motivation, also referred to art. 8 of the ECHR, according to which, in the use of control tools, it is still necessary to determine a balance between the opposing rights on the basis of the principles of "reasonableness" and "proportionality".
Avv. Francesco Bianchi
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