Comment: Use of investigative agencies

For the last 30 years Italian courts have been struggling with a law that was introduced way back in 1970.

From the outset, the Worker’s Statute contained a tranche of restrictions on the right of managers to manage. It prohibits the use of security guards to conduct supervisory duties (Article 2); prohibits the use of covert personnel (investigative agencies) to observe employees (Article 3); puts tight limits on the use of audio-visual equipment in the workplace (Article 4 – since relaxed); effectively forbids personal searches (Article 6); “the abuse of disciplinary powers” (Article 7) and investigations into employee opinions (Article 8).

The challenge for the courts has been to determine how much Articles 2 and 3 relate just to the assessment of employee performance, or whether they also prevent the investigation of potential criminal activity. The Supreme Court has hitherto generally accepted that it does not restrict investigation of illicit behaviour in or outside the workplace, but it is difficult to know where it draws the line. In a recent case (decision 15094/18), the Supreme Court has set aside an employer’s use of an external agency to investigate an employee’s fulfilment of their contractual obligations where the majority of the duties were carried out off the employer’s premises.

This presents a whole new and tougher barrier for employers as, according to the trade body for investigative bodies ‘Axerta’, the great majority of corporate client investigations are for contractual infractions. These include false declarations of sickness – (27%), violation of non-compete agreements – (23%), violation of the obligation of loyalty – (18%), and incorrect use of parental leave – (16%). Only 9% of cases have involved misleading expense claims and 7% have involved “offences against company assets” – both of which the Supreme court would apparently find acceptable under Article 3 of the 1970 law.

Although bogus absenteeism (like bogus CVs) is a form of criminal fraud, it is seldom treated as such and it is doubtful whether the police or courts would get involved if invited to do so. Therefore, employers in Italy are now stuck, especially where employees’ jobs are outside a fixed workplace. The only effective option would be for HR itself to directly investigate instances of suspected bogus absenteeism – possibly under the guess of their traditional welfare role.

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