With sentence no. 3133/2019, the Court of Cassation again intervened on the subject of disciplinary profiles of the use, by the employed person, of internet and social networks during working hours for personal reasons, confirming the ruling of the second degree judge , who, in recognizing the legitimacy of the challenged withdrawal, had considered that the number, duration and type of internet access of the dismissed worker were such as to undermine employer confidence and thus justify her disciplinary dismissal.
In the present case, the worker, employed by a professional firm, had completed around 6,000 internet accesses over the course of 18 months, of which around 4,500 were posted on Facebook for a significant period of time, also considering the total hours of the contract of part-time work between the parties.
With particular reference to the facts attributed to the female worker and promoted as the basis of her dismissal, the Supreme Court highlighted, on the one hand, that the same worker had not denied having carried out most of the access to the internet and, on the other, that it was irrefutable that the accesses on Facebook were attributable to it, given that access to this internet portal requires individual credentials.
The Court of legitimacy then rejected the applicant's complaints concerning the alleged violation of the law on the protection of privacy by the former employer.
Despite the rejection of the ground of appeal, it is noted that the defence of the worker, indeed, has raised a non-negligible question in relation to a disciplinary dismissal as the one in question.
According to a recent ruling by the Privacy Guarantor, in fact, the employer cannot specifically install programs to monitor access and the activity performed by its employees on the Internet (see, Privacy Guarantor Decision, July 13, 2016, No. 5408460).
Furthermore, the employer , in initiating disciplinary proceedings against their own employee, must take appropriate measures to guarantee, at least, the confidentiality of the content of the assessment, so that no sensitive data of the worker can emerge with reference to political or religious opinions etc. (see, Guidelines on Privacy, March 1, 2007, n. 13).
In conclusion, given the ruling in comment and the aforementioned guidelines of the Privacy Guarantor, if it is true that the conduct of a worker who excessively accesses the Internet during working hours for personal reasons can jeopardize the relationship of trust with the employer, justifying their dismissal, it is no less true that it is necessary, in assessing the legitimacy of the expulsion measure adopted by the company, to take into account how the data, which led to the dismissal, were collected and processed by the latter. (AA)
