Italy: The Information Obtained from Company Devices Provided to Employees cannot be Used if the Employer does not Give Prior Notice

The use of the information collected through “audio-visual systems” or “other tools from which also derives the possibility of remote control of the employees’ activities” or, again, through the “tools used by the employees to perform their work […]”—referred to in Art. 4, Paragraphs 1 and 2, Law No. 300/1970 is subject to the employer’s fulfilment of the obligation to properly inform the employees pursuant to Paragraph 3 of the aforementioned article.

The Supreme Court confirmed this with order no. 15391 of 3 June 2024, deciding on the case of an employee hired as a travel technician who had been dismissed following a disciplinary proceeding due to irregularities emerging from the data that the employer acquired through the geolocation of his company laptop as well as the electronic toll collection device, the so-called telepass, installed on the company car he was using to carry out his functions.

The Court of Appeals, reforming the first instance sentence, had accepted the claims brought by the employee, deeming the dismissal for justified subjective reason as ungrounded. And this, in particular, on the basis of the fact that since the employer provided the employee with the information notice required by the said art. 4, paragraph 3, with reference to the company laptop only, “the data acquired through the telepass could not have any relevance for disciplinary purposes” nor were the violations resulting from the geolocation of the computer “such as to constitute a significant failure to fulfil contractual obligations” by the employee.

The employer appealed before the Supreme Court, claiming that, being the telepass instrument a mere “alternative payment method to reimburse expenses,” it should be excluded from any “regulatory provision aimed at protecting the personal data of interested parties,” data obtained from the monthly invoice drawn up by the telepass administrator company.

The Supreme Court, on the other hand, excludes that the remote control over the employee’s activity deriving from the data recorded by the telepass can fall within the category, created by case-law of the so-called “defensive investigation in the strict sense,” which does not require prior and adequate information, as it is justified in and subordinate to the presence of a well-founded suspicion regarding the commission of an offense. In this case, in fact, the Court clarifies that “it absolutely does not emerge” that the employing company “had demonstrated and asked to prove the specific circumstances that had led it to activate that technological control.”

The Court then concludes that the telepass instrument, within such context, falls to all intents and purposes within the scope of application of Art. 4, Paragraph 2, of the Law No. 300/1970, with the consequence that the information collected through it can only be used “provided that the employee is given adequate information on the methods of use of the tools and of carrying out the checks, as well as in compliance with the provisions of the legislative decree of 30 June 2003, n. 196.”

Key Action Points for Human Resources and In-House Counsel

Practical Points

• The employer cannot use data on the employees’ performance collected through technological company devices provided to the employees to perform their working activities unless the employees receive proper information notice on the method of use of such tools and of checks, pursuant to Art. 4 of the Law No. 300/1970.
• Only the so-called “defensive investigation in the strict sense,” which implies the presence of a well-founded suspicion regarding the commission of an offense by the employee, does not fall into such a framework and does not require prior and adequate information.