The Italian Data Protection Authority sanctioned the company Foodinho S.r.l., a Glovo Group company, to pay a fine of EUR 5 million for unlawfully processing the personal data of more than 35,000 riders through its digital platform.
Following a complex investigation carried out ex officio by the Authority, it revealed that the company, which had already been sanctioned in 2021 for unlawful processing and violations of the provisions of the privacy legislation, was carrying out “numerous and serious violations” of the GDPR.
Among others, the company:
In addition to the numerous violations of privacy regulations pointed out by the Italian Data Protection Authority and partially reported herein, it is worth mentioning that the Authority highlighted that in this case, the company “while carrying out an activity of systematic control of the work performed by the riders, through the settings and functions of technological tools that operate remotely (digital platform, app, communication recording systems), […], did not comply with the provisions established by Article 4, paragraph 1, of Law no. 300/1970, as it did not verify that the tools used are attributable to the purposes strictly allowed by the law (organizational and production needs, work safety and protection of the environment, and protection of the environment) nor did it activate the guarantee procedure provided for in the event of the existence of one of the aforementioned purposes (collective agreement entered into with trade union representatives or, failing that, authorization by the Italian Labor Inspectorate)”.
In other words, the company, in addition to implementing technical and organizational security measures aimed at eliminating breaches and ceasing unlawful processing of personal data, must also take appropriate measures to comply with the provisions of the Workers’ Statute on remote control of employees.
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The reference to “conciliation location” in Article 411 of the Italian Code of Civil Procedure does not permit company premises to be included among the protected locations (sedi protette), even if a union representative is present at the conciliation.
By order no. 10065 of 15 April 2024, the Italian Court of Cassation affirmed that a union negotiated conciliation agreement, under Article 411, paragraph 3 of the Italian Civil Procedure Code cannot be validly concluded at company headquarters. This is because company headquarters do not fall within “protected locations” (sedi protette) which are neutral and guarantee, together with the assistance provided by the union representative, that the worker is free to make his or her own decisions.
As an alternative to a judge’s ruling, out-of-court conciliation has always been viewed favourably by the legislature for settling employment disputes. For these purposes, the legislature has introduced over time a number of useful tools: the conciliation attempt at the Local Employment Inspectorate (Ispettorato Territoriale del Lavoro, ‘ITL’), which is optional, and mandatory only in cases of certified contracts, under Article 410 ; conciliation in the context of an employment contract with progressive entitlement (Italian Legislative Decree no. 23/2015); the union negotiated conciliation attempt (Article 411, Italian Code of Civil Procedure); attempted court conciliation (under Article 185, Italian Code of Civil Procedure and Article of 420, Italian Code of Civil Procedure); conciliation at university locations; conciliation by single judge (Article 11, Italian Legislative Decree no. 124/2004); conciliation in arbitration under Articles 412-ter and 412-quater.
Most recently, with the Cartabia Reform (Italian Legislative Decree no. 149/2022), the legislature also extended assisted negotiation to employment disputes through the introduction of new Article 2-ter to Italian Decree-Law no. 132/2014 (converted into law no. 162/2014). The Reform aims to facilitate the settlement of the dispute by legal representatives of the parties who initiate such proceedings, without the presence of a third-party conciliator, prior to bringing the court action.
From an employment law point of view, Article 2113, Italian Civil Code provides, in general terms, that waivers and settlements of employee’s rights deriving from mandatory provisions of the law or collective bargaining agreements are invalid. The provision also guarantees the employee the possibility of challenging the settlement, by any written document, within six months from the termination of the relationship or the subsequent date of the settlement.
Indeed, the legal system considers that, in contrast to civil law negotiations (formal equality between the parties), in employment relations there is a substantial financial inequality between employer and employee. This inequality must be rebalanced through the declared protection for the employee, to avoid the agreement causing damage to the employee instead of guaranteeing and protecting his or her rights.
Notwithstanding the above, Article 2113, Italian Civil Code, as is well known, also provides that waivers and settlements are valid (and, therefore, can no longer be challenged) if they are entered into in the locations exhaustively identified by the legislator, i.e.:
In these cases, the worker’s position is protected by the intervention of a third party, thereby ensuring that the worker is free to make his or her own decisions.
Recent case law is a real wake-up call for the employer, with particular reference to union assisted conciliation agreements, because it has held that such agreements are totally unchallengeable because they were signed in a protected location.
In fact, there are an increasing number of rulings (not only at first instance, but also on appeal) that have held union negotiated settlement agreements to be invalid if they lack certain characteristics.
For a union negotiated settlement agreement to be considered valid, it must involve effective assistance from the conciliator to whom the worker has given specific mandate.
The effectiveness of the assistance derives from the role attributed to the conciliator. In addition, as the settlement cannot be appealed, the conciliator must inform the employee in advance of the scope of the rights accrued and divested or dealt with differently from as provided for by law or by the collective agreement, as well as the consequences of signing the union negotiated settlement (see amongst others: Italian Court of Cassation, order no. 16154 of 9 June 2021).
Continuing the review of rulings that have found that a union negotiated conciliation agreement can be challenged, reference is made to the Court of Bari’s judgment of 6 April 2022. This judgment affirmed that if the assistance to the worker, as part of a union assisted settlement, was provided by the representative of a union to which the employee did not belong, then the agreement is invalid and ineffective.
Moreover, the Court of Rome (judgment of 8 May 2019) went so far as to hold that for the agreement to be unchallengeable (as provided for in Article 2113, paragraph 4, Italian Civil Code), union negotiated settlement must be expressly provided for in the collective agreement applied by the employer, which regulates its locations and procedures under Article 412-ter, Italian Code of Civil Procedure.
In addition, the Italian Court of Cassation held that for a union negotiated conciliation agreement to be valid there had to be a specific union mandate given when the conciliation is imminent and supported by assistance provided by the union to which the worker belongs and not by others (Italian Court of Cassation no. 16168/2004).
In recent months, case law has also addressed the issue of the “location” where the union negotiated conciliation agreement must be signed for it to be unchallengeable.
Reference should also be made to two recent cases on the subject, which is also the subject of the order under discussion.
By order no. 25796 of 5 September 2023, the Italian Court of Cassation – upholding the Appeal Court ruling – ruled that a conciliation agreement entered into at the Prefecture’s offices with the assistance of a workers’ union representative was not unchallengeable under Article 2113, last paragraph, Italian Civil Code. This was because such an agreement could not be considered to have been concluded at a conciliation location as required by the terms of the sector collective bargaining agreement under Article 412-ter, Italian Civil Code.
Similarly, a few months ago, the Italian Court of Cassation, in order no. 1975 of 18 January 2024, ruled that the need for a union negotiated conciliation agreement to be signed at a conciliation location is not a formal requirement: rather it ensures the employee’s understanding of the deed dealing with his or her rights that he or she is about to sign and, therefore, ensures that he or she is entering into the conciliation agreement of his or her free will. Therefore, if this understanding is nonetheless acquired, for example through comprehensive explanations provided by the union conciliator appointed by the worker, the purpose intended by the legislature and the parties to the collective agreement must be said to have been achieved. In such a case, therefore, entering into the conciliation agreement in a location other than the union premises does not invalidate the settlement.
The case related to this order originates from the signing of a conciliation agreement at the company’s premises, in the presence of the parties and the union representative.
In that agreement, the company “had committed not to carry out the pre-announced collective dismissals referred to in the letter starting the redundancy procedure on the condition that all employees accepted the proposed 20% decrease in monthly taxable salary for the period 1 March 2016 to 28 February 2018 with the possibility of extending the reduction for up to two more years”.
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The Court of Trieste, Employment Section, with order of 21 December 2023, no. 525/2023 has held that so-called “vulnerable” workers’ rights to work remotely cannot be “absolute” but must be balanced with the company’s organisational and production needs as envisaged by the employer.
In the present case, a “vulnerable” employee worked remotely five days a week, under an individual fixed-term agreement. At the end of the agreed term, the employer informed the employee that, due to changed business and organisational needs, she would have to work for three days a week in person and, for the remaining two days, remotely.
In the face of this, the worker complained about the incompatibility of her state of health with in-person work, arguing the the tasks assigned to her were absolutely compatible with remote working – also taking into account that in the last three years she had carried them out entirely remotely – and highlighting the unlawfulness of the employer’s conduct for breach of Article 2087 of the Italian Civil Code.
The employer challenged the application and claimed that it was unfounded for alleged breach of the company’s freedom of organisation, protected by Article 41 of the Italian Constitution. The employer justified the refusal to allow the employee to work entirely remotely on the basis of proven organisational reasons and reiterated the need for her presence in the workplace for at least three days a week.
The Court highlighted that the right to remote working granted to “vulnerable” workers (see Article 90, paragraph 1, of Italian Decree-Law no. 34/2020) is not an absolute right but a right expressly subordinated to the compatibility of the worker’s tasks being carried out remotely.
The Court also acknowledged that the ways in which the employer exercised its power to organise the company appeared real and appropriate and that the possibility of working remotely, albeit partially, was never denied but rather partially granted following a balancing and re-evaluation of the parties’ mutual needs.
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In conclusion, it can be said that the assessment of the compatibility of remote working by vulnerable workers must be carried out on the basis of the organisational and production needs of the concerned organisation, involving, where necessary, an inevitable need to alternate between days in which the worker must work in-person and days when he/she can work remotely. This reading, among others, is consistent with the provisions of Article 18 of Italian Law no. 81/2017 which, in defining remote working, provides for that work should be provided “partly inside company premises and partly outside”.
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On 4 May 2023, Italian Decree Law No 48/2023 (the ‘Employment Decree’ (‘Decreto Lavoro’)) containing ‘Urgent measures for social inclusion and access to the workplace’ was published in the Italian Official Gazette.
The Decree introduced important initiatives on employment law, social security and social assistance, with effect from 5 May 2023.
One of the main initiatives in the employment law field are changes to the permitted reasons for fixed-term employment contracts, with a strengthening of the role of collective bargaining.
The permitted reasons justifying a fixed-term contract of between 12 and 24 months, the extension for more than 12 months, or the renewal of a fixed-term contract are exclusively those provided for by the collective agreements concluded by the associations comparatively more representative at national level, or in the absence of such provisions and until 30 April 2024, the individual parties, for technical, organisational and production needs.
The Decree also simplifies the employer’s information obligations introduced by the ‘Transparency Decree’.
In contrast to the past, some of the information that the employer was required to provide in the employment contract or in a specific information notice can now be provided to employees simply by referring to the relevant legislation or collective bargaining agreement, which may also be the company’s bargaining agreement, applied to the employment relationship. This information relates to, for example, probationary period duration, training, paid holidays and leave, notice of dismissal and resignation, salary components, working hours, overtime, social security and insurance institutions.
To simplify the obligation, and to ensure uniformity in the employer’s communications, the employer will be required to deliver or make available to staff, including through publication on the website, national, regional and company collective bargaining agreements, as well as any company regulations applicable to the employment relationship.
The employer’s information obligations on the use of automated decision-making and monitoring systems have also been reduced, thus further simplifying these information obligations.
Further measures introduced by the Decree concern:
The Decree also provided a series of measures relating to social security and assistance, aimed above all at supporting youth employment, promoting the permanent integration into the labour market of beneficiaries of the Inclusion Allowance and reducing the ‘tax wedge’ (cuneo fiscale).
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Transparency Decree: new obligations for the employer
As is well known, on 23 February 2023 the European Commission requested its employees and collaborators to uninstall the TikTok social network application from their business and personal electronic devices. This request was accompanied by the notice that, for those who had not uninstalled the social network by 15 March, it would no longer be possible to access other company applications such as the e-mail box or Skype services.
The decision taken by the European entity derives from a need to protect the data and information of those who work for it as well as from the need to increase IT security.
Could a private sector employer in Italy take the same decision?
In an attempt to provide an answer to this complex question, it is first of all necessary to distinguish between business and personal devices. If electronic tools, including mobile phones, are provided by the employer they are company equipment and, as such, the employer has the ability to implement a certain level of ‘control’ over them.
In fact, through the identification and adoption of internal policies defining rules for the correct use of the work tools with which its employees are equipped, the employer may introduce rules to prevent the improper use of the assigned tool and prohibit its use for personal purposes rather than prohibiting the installation of applications not connected to work activities on the device.
In the event of assignment of company tools, it is therefore highly recommended to implement internal policies and regulations that govern their correct use by assignees. In fact these aspects have across-the-board consequences related to the management of the employment relationship. Just think, for example, of topics relating to (i) employment law which also include aspects relating to disciplinary sanctions that can be adopted in the event of a breach of company rules as well as the correct exercise of control powers by the employer, (ii) the protection of personal data, both of the employees themselves and of the data they process due to their duties as well as (iii) health and safety and the risks to which the employees who use them could be exposed.
However, different conclusions can be reached on the subject of personal devices. Since these are, in fact, the employee’s own tools, the employer can limit, or even possibly exclude, the use of personal mobile phones during the workday without, however, entering into the merits of what can or cannot be installed on them.
Lastly, the use of electronic instruments, whether personal or business, exposes corporate assets to the risk of accidental loss, theft and dissemination. Therefore, employers must take care to adopt all appropriate measures to ensure sufficiently high levels of safety in full compliance with all applicable regulations in such circumstances.
On the basis of the considerations set out above, which in any case merit further investigation, it does not appear possible for an Italian employer to intervene directly on the personal electronic devices of its employees in the same way as the European Commission. However, defining, adopting and updating policies over time that regulate the use of work tools or the use of personal devices – during, for example, rest times during the working day – appears to be a fundamental measure that companies should consider in the broader definition of the strategic plan for the protection of both corporate assets and the parties that make up the reference organisation.
