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14 March 2012
The case of a bank clerk who was terminated on the basis of information uncovered through email monitoring has clarified some of the issues surrounding the potential conflict between an employer's right to supervise and an employee's right of privacy.
Section 4 of the Statute of Workers' Rights (Law 300/1970) prohibits remote monitoring of working activity through the installation of audiovisual equipment or other technical systems which may be used for remote monitoring. However, Section 4 also states that where the employer has a legitimate business interest in such monitoring, it may negotiate an agreement with the works council (or, if there is no works council, with the local office of the Ministry of Labour.)
The clerk, who was employed in the bank's customer service centre, was terminated for divulging confidential information about a customer by email and for taking economic advantage of the information. The employee contested the dismissal, arguing that the employer's implementation of email monitoring violated Section 4. The lower courts rejected the employee's appeal.
The Supreme Court confirmed the decision, upholding the ruling in favour of the employer.(1) The court stated that the aim of Section 4 is to protect the dignity and privacy of employees where an employer's monitoring - often using new technology - would otherwise be too invasive. However, this implies that employees are engaged only in legitimate activity. Therefore, the court confirmed that so-called 'defensive monitoring' is not covered by Section 4.
The court stated that the term 'defensive monitoring' refers to controls that are legitimately put in place to protect company assets or to detect illegal conduct on the part of employees (either to prevent such conduct or to obtain proof of it). On this basis, the court held that defensive monitoring conducted after an employee's illegal conduct, by reviewing the employee's company email account, is legitimate.
The decision addresses the nature of defensive monitoring, which is intended not to ascertain whether employees are carrying out their work correctly, but rather to detect wrongful conduct that may harm the employer's assets (including the company's image). In these circumstances the employer's right to protect its assets and image prevails over the employee's right to privacy.
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