Prepared by Francesca Tironi and Paola Dell’Utrii
The employer’s check on the company’s chat (to be considered as a working tool according to article 4, paragraph 2, of the Statute of Workers) is regulated by paragraph 3 of the same article, according to which the information collected can be used for all the purposes linked to the employment relationship – included the disciplinary ones – ” on condition that an adequate notice over the modalities of use of the tools and of the conduction of controls is given to the employee, and the check are conducted in respect of provisions of the Decree-Law no. 196/2003“.
Therefore, also when the employer checks the company chat for technical purposes, he or she can use the evidence collected for disciplinary purposes only if the company has previously and adequately informed the employee over such eventuality.
This is the principle recently confirmed by the Supreme Court (by means of the Judgment no. 25731/21) handed over on a case regarding, in a nutshell, a woman fired after that – during a technical control – the employer found on the chat belonging to the same employee a series of offensive remarks addressed to a hierarchical superior and to her colleagues.
Specifically, the Supreme Court confirmed the judgment of the Court of First Instance that declared the dismissal null and void and established – or rather reaffirmed, given the consolidated case law on the matter – that under Article 4, paragraphs 2 and 3 of L. 300/1970, the company’s chat has to be considered a working tool. It follows that the data collected therein – even though the access to the chat was allowed by the company’s regulation for maintenance, updating or planning costs reasons – cannot be legally used if there has been no prior notice to employees on the possible employer’s checks of business devices assigned to them.
Practically speaking, it is therefore advisable for employers – in order to avoid potential conflict risks such as the one described above – to inform the employees, at the time of hiring or during the employment relationship, over the possibility of conducting checks on working tools assigned to them: this activity can be lawfully performed, specifically, by means of the information notice given to employees pursuant to article 13 of the GDPR or, even better, by means of a policy that regulates the matter in details.
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