Are we in a regulatory vacuum?
With the entry into force of EU Regulation 2016/679 (GDPR), the request, at the time of hiring, for certificates relating to criminal convictions or security measures required for the worker is lawful only if provided for and authorised by EU law or the Member State, as the General Authorisation no. 7/2016 of the Privacy Guarantor is no longer valid (see articles 10 GDPR and 21, paragraph 3 of the Legislative Decree No. 101/2018 for adaptation).
In the absence of a specific rule having the force of law or regulation (therefore, any provision of the collective agreement is not sufficient), the request for the aforementioned certificates must be at least provided for “by a decree of the Minister of Justice, to be adopted pursuant to article 17, paragraph 3, of the law of 23 August 1988, no. 400, having heard the Guarantor." (Art. 2 octies Legislative Decree cit.).
The aforementioned ministerial decree has not yet been issued and we would therefore be in the presence of a very serious legislative vacuum, as unanimous doctrine and constant jurisprudence have always affirmed the justification of the request for the criminal record certificate due to the particular nature of the relationship and / or workplace.
This void can be averted pursuant to art. 8 of law 300/70, which prohibits "the employer, for the purpose of hiring, as in the course of the employment relationship, to carry out investigations, including by third parties, on the political, religious or union opinions of the worker, as well as facts that are not relevant for the assessment of the professional attitude of the worker".
In fact, by applying the aforementioned rule, the request for a criminal record certificate is justified by the relevance that it may require, in certain work contexts and for the purpose of evaluating the professional attitude of the worker, knowledge of information relating to the existence of criminal convictions. An application to the contrary, but certainly on the subject and supported by the jurisprudence of the Supreme Court (see Civil Cassation, Section of Labour, 07/17/2018, No. 19012).
Especially since in some cases our system not only authorises, but even obliges to request the criminal record certificate, as in the case of employers and clients who want to hire an employee to carry out work or voluntary activities that involve direct and regular contact with minors. These employees are required to verify the existence of sentences or disqualification sanctions relating to crimes connected with prostitution and child pornography as set forth in Articles 600bis, 600 ter, 600 quater, 600 quinquies, 609 undecies (see European Directive no. 2011/93 and Legislative Decree 4/3/2014 n. 39).
And the judicial record must always be requested also for the awarding of public contracts (Civil Cassation, Section I, 09/22/2011, No. 19364; see Article 75 of Presidential Decree No. 554 of 21 December 1999 and Article 71 Presidential Decree No. 445 of 28 December 2000).
The opportunity and even the necessity, as obtainable from the legislation in force and from the jurisprudence of legitimacy, to allow the employer to verify, at least for certain relationships, the inexistence of a criminal record passed in res judicata does not seem, however, to be able to be used to authorise the verification of the existence of criminal proceedings in progress.
The request for the criminal record certificate can therefore be considered legitimate, but not that for the certificate of pending charges, in consideration of the constitutional principle of the presumption of innocence (Article 27 of the Constitution), which would otherwise be seriously violated, together with the privacy of the worker (see Civil Cassation, Labour Section, 07/17/2018, No. 19012). (LC)
