The reformulation of Article 4 of the Italian Charter of Workers on remote control of employees has created a specific distinction between monitoring procedures, on the one hand through video surveillance installations and other labour systems, and on the other hand through specific instruments used by every worker in order to perform the job and to register access and presence. The reformulated Art. 4 provides for the employer to refer to the first monitoring procedures only through a previous labour union deal or an authorisation by the “Direzioni Terrritoriali del Lavoro” (hereinafter D.T.L), whereas for the second monitoring procedures such authorisations are unnecessary. In both cases, providing workers with adequate information is compulsory in accordance with the Privacy Legislative Decree 196/03, in absence of which every evidence obtained cannot be used.
The issue has been left unsolved with regard to the use of a G.P.S. system1, if it is to be considered or not as a mean used by the employee to offer a working performance, and all that derives from it within the meaning of authorisation requests to the competent organs. Therefore, on 8th November 2016, the “Ispettorato Nazionale del Lavoro” published a notice containing operative instructions on the use of GPS systems in accordance with Article 4, paragraphs 1 and 2, law 300/1970.
The “Ispettorato” clarified how in general the GPS is to be considered an additional element of the working tools, since the localization instrument has further purposes with regard to the performance of duties (insurance, organisation, production or as a guarantee of employees’ safety). It is evident how in such cases, as the GPS does not constitute an essential instrument in order to perform duties, the provisions of paragraph 4 of the same Article apply according to which a deal with unions or a D.T.L. authorisation is necessary.
However, in certain specific occasions, the GPS can be considered as a necessary tool to perform working duties; in such case only a notification to the concerned employees is required. This happens when the localization system permits the concrete and effective feasibility of the working activity, which cannot be performed without the use of a GPS system, or in case such use is requested by specific regulations.
With regard to the latter point, the Court of Cassation, in judgment number 19922 of 5th October 2016, declared illegitimate the dismissal of an employee on the base of distant monitoring performed by the employer through a GPS system installed on the company car. In the specific case, the subject was a private surveillance agency which, through data detected on the GPS, had found that his employee had performed personal tasks instead of the assigned routine rounds.
In the referring case, the company had previously agreed with the labour unions to the use of a GPS system on company cars, excluding its use for employment purposes such as dismissal and disciplinary procedures.
The Supreme Court held that the control put forward by the surveillance company was set as a generalized mechanism ex ante, therefore not to be considered as a “defensive” mechanism. Please note that, if the working performance control is put forward after solid suspects of illegal employee’s behaviour, these are to be considered as “defensive controls” and can be used at court (please refer to my article published on www.dvlegal.it dating 23/08/2016).
Because of the abovementioned considerations, the reformulation of Article 4 of the Workers’ Statute, also in the light of the most recent case law, cannot be considered as a sort of liberalisation of distant control but as a clarification on the modalities of use of systems connected to employment purpose and on the limits on the use of collected data. Therefore, the employer is authorized to perform distant control and to use such data also for disciplinary purposes, but will always need to provide employees with all the safeguards set in the privacy Legislative Decree.
1 The Global Positioning System is a global navigation satellite system (GNSS) that provides geo-location and time information to a GPS receiver in all weather conditions, anywhere on or near the Earth where there is an unobstructed line of sight to four or more GPS satellites. Localization occurs through the transmission of a radio signal from each satellite and the processing of the signals received by the receiver.