Il contributo dell’avv. Bargellini sul tema del Controllo a distanza.
Under Italian employment law, the control over the employee’s activity has been forbidden for years. This means that the employer could not implement any technical, mechanical, audiovisual system that – even if implemented for other reasons – allowed the control on the employees’ working activity.
Article 4 of the Italian Workers’ Statute of Rights (Law no. 300/1970) prevented the use of any technical or mechanical control over the employee’s activity: the employers could not use any video cameras, mechanical systems, software, and any other device that could let the employer acknowledge if and how the employees were working during the working time.
The employer could use this kind of systems only for technical, organisational reasons and for reasons linked to the safety at work, but only after having reached an agreement with Unions. These kind of systems were usually allowed to protect the Company’s properties (like video cameras filming the cash registers for avoiding thefts).
Last September 2015, the Italian Jobs Act amended Article 4 of the Italian Worker’s Statute of Rights, and some significant changes were introduced. Pursuant to the new legislation, the regulation of the use of audiovisual systems and any other device through which the employer can control the employee’s activity remained unchanged: these systems can be implemented only for productive and organisation reasons and for protection of the Company’s properties with the green light of Unions representatives.
Moreover, the new Article 4 Law 300/1970 allows the employers to process and use all information obtained from devices given to employees for performing the working activity such as GPS in company’s car, the mobile’s app used for working reasons, the security pass, the laptop, the iPad or similar IT equipment used by the employees for working reasons.
The big revolution of this new regime consists in the fact that the employer can use the information obtained from these devices for any purpose linked to the employment relationship, and this means that the companies can use the information, for example, for evaluating the employee’s performance and for disciplinary issues.
This is a strong reform under Italian law: what previously was absolutely forbidden, like checking the employee’s activity through the work equipment, is now allowed. The employer can keep under control the employees’ mobile phones, GPS, personal computers and laptops and all information obtained are valid and useful for evaluating the employees’ performance, also from the poor performances process point of view, as well as for disciplinary procedures.
The only employers’ obligation is to inform in advance the employees about the use of the equipment they are going to implement. Therefore the companies should draft new internal policies, duly published and delivered to the employees, in which they clearly and fully explain how the work equipment will be used and which information the employer will obtain from it and the aim of such control.
This new regime has not been universally adopted by Italian companies yet, because employers are perhaps still waiting for the first Judge’s interpretation, which will clarify some interpretative doubts still existing, with reference for example to what can be considered as work equipment, and how to implement any control on equipment used for private purposes after the working time.
At this time, no Italian Judge has had the opportunity to pronounce on this matter, therefore the employers are now slowly and reluctantly implementing this discipline, from one side with the desire to change the rules, but on the other side with the fear of the Judges’ contrary decisions, that could lead to convictions of paying damages to the employees.