The employer can withdraw from the relationship if they had previously prohibited the use of the Internet for personal reasons and when the use for such purposes outside of work was excessive.
The use of the Internet, social media and email in the workplace for personal purposes can supplement the details of the disciplinary infringement and even lead to dismissal of the employee.
However, these must be continuous and prolonged connections, such as to entail a significant breach of contractual obligations.
For example, the Cassation recently recognised the existence of a virtual absenteeism, such as to legitimise the employer withdrawal, in the execution of 6,000 connections to the Internet unrelated to the working relationship over a period of 18 months (Cass. 3133/2019) and, in total, 45 hours’ connection within two months (Cass. 14862/2017).
The dismissal could, however, be declared illegitimate if the employer had previously allowed access to the Internet for reasons outside the employment or in cases where the collective agreement provided for the imposition of a conservative sanction (Cass. 26397/2013) or no actual damage was proven to the company (Cass. 22353/2015).
To reduce as much as possible the uncertainty about the lawfulness of the behaviours and the imposition of sanctions related to the use of the Internet, it seems appropriate that each company adopts, as suggested by the Privacy Guarantor, an internal regulation and a disciplinary code that determine if - and to what extent - the Internet connection is authorised for non-working purposes. (LC)
