Although it is forbidden by law to check the email boxes of employees, in certain cases the employer is entitled to carry out checks on emails, such as for example in the case of the emergence of evidence “strong enough to suggest the opening of a retroactive investigation.”
This was determined in judgment no. 2722/2012 of the Italian Supreme Court which rejected an appeal by a former executive of the Bipop-Carire bank, confirming the ruling of both the Courts of First and Second Instance.
The bank employee was dismissed with just cause in 2004 for divulging confidential information via email to parties outside the company in order to facilitate “financial transactions that had brought him personal gain.”
The Court of Appeal upheld the First Instance ruling and found a number of violations committed by the former bank employee such as breach of confidentiality and fairness, a violation of company rules and a violation of the code of professional ethics.
The employee thus filed an appeal to the Supreme Court claiming a violation on the part of the employer of the guarantees concerning the limits of distance controls of employees provided for by art.4 of the Workers’ Statute.
However, the Italian Supreme Court found that the exercise of control by the bank “is not to be considered as mere surveillance of the employee’s work,” in that it “was aimed at ascertaining whether possible unlawful conduct had been committed, (which in fact subsequently proved to be the case)”. This ex post control is to be considered as permissible as it follows the discovery of facts that demand a retroactive investigation aimed at “ascertaining the existence of conduct that jeopardized the image of the company itself with third parties”