Private investigations on workers and privacy profile

In the context of investigations conducted by private investigative agencies, law case has examined fundamental issues, with a particular focus on Articles 2 and 3 of the Workers’ Statute. Legal uncertainties have arisen due to interpretative evolution, practical application, and debates on the legitimate scope of controls and the limits of surveillance, in accordance with statutory provisions. The use of private investigators by employers falls within the realm of defensive controls, i.e., types of controls that can be carried out without the knowledge of the worker. Therefore, it is outside the scope of Article 4 of the Workers’ Statute. In such cases, only if the employer has a well-founded (and demonstrable) doubt that the worker is engaging in an action or omission contrary to obligations he is bound to. The exception arises in cases where the use of private investigators aims to verify behaviors that could constitute criminally relevant hypotheses. The Italian Court of Cassation has indeed annulled the contested decision, declaring the territorial court’s assertion legally incorrect that no prohibition can be configured for the employer to use a detective agency to control the diligent execution of work performance, without any reference to competitive activities or otherwise fraudulent behaviors (Court of Cassation, labor section, June 11, 2018).

The delicate balance that characterizes private investigations r...