The Supreme Court on employer monitoring: the lawfulness of checks on employees.

With order No. 807 of 13 January 2025, the Court of Cassation reaffirmed the principle that an employer may carry out checks on employees and their work tools only where there is a well-founded suspicion of wrongdoing, and only provided that such checks relate exclusively to data acquired after the suspicion arose.

In the case at hand, the company, after receiving an alert from its IT system concerning the possible commission of wrongdoing by an employee, launched a series of checks. However, those checks concerned data stored in the system from a period preceding the alert.

Although the Court found the alert capable of giving rise to a well-founded suspicion of wrongdoing, the company carried out a retrospective check, that is, one performed on data archived in the system prior to the alert, thereby placing itself in conflict with Article 4 of the Workers' Statute, which permits only ex post technological checks, i.e. checks on conduct engaged in after the well-founded suspicion arose.

The Court highlighted the importance of a balance between the need to protect company interests and respect for employees' dignity and privacy. Allowing the employer to extend checks to all previously collected data, without a well-founded reason, would upset this balance and breach employees' confidentiality.

In the specific case, the information obtained through the alert system was assessed by the Court as a mere indication, useful for justifying the opening of an investigation, but not as direct evidence capable of supporting a dismissal. For this reason, the employee's dismissal was found to be unlawful.

In short, order 807/2025 of the Court of Cassation reaffirms the delicate balance between the employer's need to carry out checks and the protection of employee privacy, establishing that every monitoring action must be justified and confined to the period following the emergence of a suspicion of wrongdoing, without turning into exploratory or preventive surveillance.

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