The recent Supreme Court ruling No. 19922 of October 5, 2016 goes back on a ever growing subject, the “employee’s monitoring”. In this case the Supreme Court reaffirmed an already consolidated approach: the employee’s monitoring (provided by art.4 L.300 / 1970 and the recent Legislative Decree no. 151/2015) can not be used for dismissal purposes and it is prohibited even if it has defensive character only, ie, proving the breach of the contract by a worker.

In the case, an employee was fired from the company for just cause and he was notified for not having carried out the work activity expected because of inspections carried out by satellite GPS system installed on the business car, the employee was elsewhere in the days and at the hours scheduled.

At first instance the judge had given reason to the employee: the company had not demonstrated the actual non-performance of work by the employee taking the data from the GPS system, in fact, this cannot be used as a source of evidence contract breach firstly because it is prohibited by law, and also, there was a previous union agreement that allowed the installation of navigation systems on company cars but expressly not employee’s monitoring purpose.

In the Supreme Court’s ruling explanation it was confirmed the illegality of employee’s monitoring carried out in violation of the law, and their uselessness as sources of evidence of breach of contract:

• The satellite system, allowing an ex ante control for the company, has to be used for purposes such as safety and protection for the of the worker, regardless of suspects on the employee;
• The employer can install control devices that may detect activity data of the employees but this cannot be used to demonstrate a breach of contract;
• The GPS would allow an almost unlimited control, far beyond the ordinary work, and cannot be regarded as aimed at the protection of corporate assets and corporate image, stopping the notion of “defensive control”