Employee filmed in the gym at work: no to dismissal

The Court of Cassation, with l‘Ordinance n. 25287 of 24 August 2022declared the illegality of the dismissal of a bank employee even if filmed by the private investigator in the gym during working hours.

The new orientation comes after numerous sentences of opposite opinion documented also in a public conference in 2018 with authoritative opinions that supported the legitimacy of controls on employees through investigative agencies.

Laws about “Absenteeism can be beaten, the cassation opens to investigators“To learn more see also the commento Controls on employees by detective agencies: are they legitimate?

Let’s see the particular case and the specific reasons for the most recent pronouncement.

Checks with the worker detective agency

A bank employee had challenged the dismissal imposed for being filmed several times outside the workplace in supermarkets and gyms, in activities unrelated to work.

The territorial court had in fact considered legitimate the checks carried out by the investigative agency as they were not aimed at the direct control of the employee’s work activity, prohibited by Article 3 of the Workers’ Statute but the result of a broader investigation relating to the violation of permits pursuant to art. 33 I. 104/92 by a colleague of the interested party,

The court recalls the previous rulings (one of all the cass. N.15094 of 11/06/2018) in which it affirmed – with regard to the scope of articles 2 and 3 of I. n. 300 of 1970 to protect the freedom and dignity of the workerthat they do not preclude the entrepreneur’s power to resort to the collaboration of subjects, (such as, in this case, an investigative agency) / even though the control cannot, in any case, concern either the fulfillment or the non-fulfillment of the contractual obligation of the workerand (Cass. n. 9167 of 2003)

This principle has been constantly reiterated, but it has also been specified that in order to operate lawfully, said agencies must not trespass on the supervision of the actual and confidential work activity, pursuant to art. 3 of the Statute, directly to the employer and his collaborators, even where there is a suspicion or the mere hypothesis that offenses are in progress (see Cass. n. 3590 of 2011; Cass. n. 15867 of 2017).

The new rulinga admits only the exception represented by cases in which the use of private investigators is aimed at verifying behaviors that may constitute criminally relevant hypotheses (such as the exercise during working hours of paid activity in favor of third parties on which see Cass. nn. 5269 and 14383 of 2000).

The supreme court therefore affirms that even in the case described, in which the investigative activity through external control concerned a colleague, it is illegitimate because it ends up affecting directly and, therefore, outside the permitted limits, on said activity.

It also accepts the plea presented on the failure to attach the evidence necessary to allow the worker an adequate defenseand that based on the principles of fairness and good faith in the execution of the contract (Cass. 27/3/2018 n. 7581

The Court therefore accepts the employee’s appeal and refers to the Rome Court of Appeal in a different composition.

See more insights into worker video surveillance in the our Privacy Dossier

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