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30 May 2012
The Court of Milan recently held that an employer had been wrong to impose disciplinary measures on a trade union leader for carrying out union activities during working hours using the employer's IT systems.(1)
The individual in question was a public employee and a trade union representative. The disciplinary action was imposed by the director of the Territorial Inspectorate of Lombardy and resulted in a written reprimand being issued.
The judge examined the exchange of emails at issue and found that the employer's actions were intended to restrict the employee's union activities; they were also found to be retaliatory in nature and to have the aim of limiting discussion of union matters. The decision was based on findings that:
Therefore, the use of the employer's IT system was related to the union discussions and could be regarded as an activity that was undertaken to ensure good performance at the company. As such, the use of the IT systems was not personal use. Moreover, communications about union activities had previously been sent from an office email address without action being taken.
The decision is particularly significant because computer metadata - that is, the information the computer 'properties' provide about the file - was used as evidence to support the claim against the employee, in an attempt to prove that he had carried out union activities during working hours. However, the court found that the data in question did not prove that the union leader's email use had taken place during working hours, as the conclusions to be drawn from it were inconsistent. The system data itself provided no evidence of uninterrupted activity on the email document between the time of its creation and the point at which a final version was saved. Thus, the data did not prove that the document had been created during the employee's working hours, but merely showed that it had been sent from the employer's system.
The courts have previously ruled that union activity using IT systems is lawful if carried out in a manner that does not obstruct normal business activities.(2) The decision highlights the importance of implementing detailed policies to manage the use of workplace email systems and other IT tools.
For further information on this topic please contact Andrea Stanchi or Annamaria Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522), fax (+39 02 551 91641) or email (email@example.com or firstname.lastname@example.org).
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