Green light to private investigations in employment relationship… most of the times! By Olimpio Stucchi and Silvia Fumagalli Through a recent court ruling (no. 15094, dated June 11th, 2018), the Court of Cassation has confirmed the prevailing case law, stating again on the lawfulness and the usability of investigations carried out by private investigators on behalf of the employer to control the employee. In this case, the Court of Cassation has confirmed that it is lawful to control the employee by using private investigation agencies and to use the results of such investigations only if such control is aimed to ascertain employee’s unlawful misconducts committed during the performance of the working activities, which are not related to the mere failure to fulfil the work performance (in the same terms see also Court of Cassation, ruling no. 8373, dated April 4th, 2018), or to control the employee’s extra-working activity (for example to verify employee’s competitive activities, see Court of Cassation, ruling no. 3630 dated February 10th, 2017) or to very unlawful use of work permits granted to employees in accordance with legal provisions (on the same terms see Court of Cassation, ruling no. 6893 dated March 20th, 2018). At the same time, the Supreme Court has confirmed that the employer shall not collaborate with investigation agencies to verify whether the employee has fulfilled or failed to fulfil his contractual obligations, since that is related to the working activity in the strict sense, even though collaborating with investigation agencies is not prohibited by law (Articles 2 and 3 of the Workers Statute). In other words, according to the Court of Cassation, investigation by private investigators are lawful and therefore usable as long as not aimed to control employee’s working activity in the strict sense, which can be carried out only by the employer and his collaborators, even if the activity is performed outside the company premises. In conclusion, it is necessary to pay attention to the tasks to assign to the private investigators agencies, in order to avoid that the results of such investigations become useless and unusable.
