The Court of Cassation has established that the data collected via telepass cannot be used for disciplinary reasons. This ruling comes following a company’s appeal against a previous decision of the Court of Appeal, which had annulled the dismissal of an employee and declared the employment relationship terminated, also providing compensation for the worker.
The case of the traveling technician
The worker in question, a traveling technician, had been accused of non-compliance regarding interventions on customers, which had not taken place according to the times and methods declared. The alleged irregularities had been verified by the employer through the geolocation of the handheld device assigned to the technician and the motorway toll data collected by the telepass. However, for the judges, this data could not be usedas they were acquired through an unauthorized system for monitoring the worker without his consent.
Remote control via telepass
The Supreme Court clarified that the telepass it had been installed on the worker’s company car at the initiative of the employer. This device allows the recording of motorway transits, providing the employer with the possibility of remote control, even if posthumous, of the employee’s activity. This control, although also aimed at preventing abuse, is not permitted without the prior consent and correct information of the worker.
The possibility of deactivating the telepass is irrelevant
The Supreme Court also considered irrelevant the appellant’s argument that the worker could have deactivated the telepass. The theoretical or practical possibility of evading technological control does not legitimize the use of the data collected if the employee has not been adequately informed on the methods of use of the control tools and procedures, in accordance with current regulations.
The question of worker consent
Finally, the argument according to which the worker’s consent was not necessary for the use of telepass data, as it is a work tool, was deemed inaccurate. The Supreme Court reiterated the importance of respecting the rules on transparency and preventive information towards the employee, making the data collected without such guarantees unusable.
Can employees be monitored via GPS?
According to the Jobs Act, employers can check the tools provided to employees to carry out their tasks (such as computers, tablets, telephones and telepass) without having to obtain prior agreement with the unions or authorization from the Labor Inspectorate. This includes the possibility of installing a GPS in the company car to monitor the employee, checking for example whether he follows routes unrelated to his work duties.
The use of GPS is legitimate if used to acquire data relating to work performance or if required by specific legal provisions (for example, for the transport of valuables). In these cases, authorization from the union or the Labor Inspectorate is not necessary. If, however, the geolocation serves other purposes, such as insurance or organizational needs, the union agreement is mandatory or, in its absence, the authorization of the ITL and the guarantee of confidentiality for the employees.
Employees have the right to access data collected by the employer through control tools. In 2023, the Privacy Guarantor sanctioned a company for failing to provide employees with geolocation information collected via company smartphones. The workers had requested this information to verify the accuracy of their pay slips, but the company did not respond adequately.
