The legitimacy of checks aimed at ascertaining illegal conduct detrimental to the company’s assets presupposes the existence of well-founded suspicion on the part of the employer concerning irregular conduct on the part of one or more employees.

It follows that the onus is on the employer to first allege, and subsequently prove, the concrete circumstances that justified the ex post activation of the technological control.

This was recently recalled by the Civil Cassation (Labour Section, 24 April 2025, no. 10822), which returned to rule on a case of dismissal for just cause, which arose between a well-known fashion house and an employee in charge of the commercial showroom in Milan.

The expulsion measure, initially justified by the alleged misappropriation of company assets, was deemed illegitimate by the judges on the merits, due to irregularities concerning the defensive controls carried out and the insufficiency of the evidentiary framework underlying their activation.

The Court of Appeal of Milan had upheld the decision rendered by the Court of First Instance at first instance, pointing out that the controls carried out by means of audiovisual equipment and personal inspections did not comply with the provisions of Article 4 of Law No. 300/1970 (Workers’ Statute) and with the legislation on the protection of personal data. This was due both to the irregularity of the prior information to employees and to the absence of a well-founded suspicion capable of legitimising the activation of the inspections themselves.

The Court of Cassation reiterated that defensive controls, in order to be considered lawful, must comply with strict legal requirements, including the existence of a well-founded suspicion on the part of the employer and compliance with the procedures provided for by the applicable regulations, in particular the Workers’ Statute and the legislation on privacy.

It also emphasised the unusability in court of evidence acquired in violation of these provisions, in accordance with an already established jurisprudential orientation.

In an appeal consisting of five grounds of appeal, the appellant company – a well-known brand in the fashion sector – challenged the Court of Appeal’s ruling, contesting the assessment of the unlawfulness of the inspections and claiming their compliance with the regulations.

However, the Supreme Court declared the appeal inadmissible, noting that the court of legitimacy does not allow a re-evaluation of the facts, except in the presence of significant flaws pursuant to Article 360 of the Code of Civil Procedure.

On the subject of so-called defensive controls, the Supreme Court confirmed a principle already consolidated in the court of legitimacy, stating that their admissibility, in the strict sense, requires the presence of a “well-founded suspicion” on the part of the employer that one or more workers have committed offences.

It follows that the onus is on the employer to first allege, and subsequently prove, the specific circumstances that led him to activate the technological control ex post.

This is because only such an assumption allows it to operate outside the scope of the direct application of Article 4 of the Workers’ Statute, as well as responding to the general principle that the employer is required to prove the elements underlying the dismissal.

The Court also noted that the appellate court had held that this burden of proof had not been adequately discharged, an observation that – since it was an assessment of merit – was outside the scope of the review of legitimacy.

Moreover, with reference to the investigative activity carried out by the employer – qualified by the claimant’s judge as a defensive control in the strict sense – the Supreme Court found, in line with what had already been ruled by the court of first instance, the violation of the regulations protecting the confidentiality and dignity of the employee, due to the unlawful search carried out on personal property, in this case the employee’s handbag.

According to the findings at trial, the employer, following the viewing of recordings from video-surveillance systems, had broken into the employee’s office during her absence for the lunch break in order to find evidence of hypothetical unlawful conduct attributable to her.

With regard to the audio-visual recordings, legitimately qualified by both judges as defensive controls aimed at protecting the company’s assets – insofar as they referred indiscriminately to the entire staff – the Court confirmed the Court’s assessment, noting the lack of evidence that the employees had been correctly informed of the manner in which the instruments were used and the controls were carried out, in breach of the provisions on the protection of personal data.

In conclusion, the Supreme Court reiterated that defensive controls must be based on concrete factual assumptions and not on mere conjecture, and that the burden of proof as to the legitimacy of such controls falls entirely on the employer.

The firm remains at your disposal for any possible clarification.