Cass.Civ. – 32283/2025

27 January 2026

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A court upheld the use of messages from a corporate chat application as evidence in disciplinary dismissal proceedings, finding that the chat qualified as a work tool and that monitoring was lawful. The employee’s appeal was declared inadmissible because he failed to challenge all independent grounds supporting the lower court’s decision.

== English Summary ==

=== Facts ===
The data subject was employed by the controller from 5 June 2017 as a Reliability and Maintenance Engineering Manager. On 20 July 2020, the controller dismissed him for serious misconduct, alleging a breach of confidentiality obligations in the employee selection process. The misconduct consisted, inter alia, of influencing recruitment decisions following improper pressure and coordinating obstructive behaviour during internal investigations.

The controller relied on messages exchanged via Amazon Chime, an internal company chat application used by employees through corporate accounts. The data subject challenged the admissibility of these messages, arguing that their use amounted to unlawful monitoring of employee communications.

The Court of Appeal of Turin dismissed the data subject’s challenge and upheld the dismissal. It found that Amazon Chime qualified as a work tool under Italian labour law and that the controller had provided adequate information to employees about the use of company IT systems and the possibility that communications could be monitored and used for disciplinary purposes. The Court of Appeal also held that the monitoring constituted lawful “defensive controls”, carried out after a founded suspicion of misconduct had arisen, based on reports from a colleague.

The data subject appealed to the Supreme Court, contesting in particular the lawfulness of the monitoring and the timing of the collection of chat data.

=== Holding ===
The Supreme Court declared the appeal inadmissible.

The Court held that the judgment of the Court of Appeal rested on two independent grounds, each sufficient to uphold the dismissal. First, the appellate court had classified Amazon Chime as a work tool under Article 4(2) of the Workers’ Statute, allowing the use of data obtained from it for disciplinary purposes, provided that employees were adequately informed and data protection rules were respected. Second, the court had found that the monitoring qualified as lawful defensive control, triggered by a founded suspicion of misconduct and carried out after that suspicion had arisen.

The Supreme Court found that the data subject had failed to challenge the first ground, namely the classification of the company chat as a work tool and the adequacy of the information provided to employees. According to settled case law, where a judgment is based on multiple autonomous grounds, an appeal is admissible only if all of them are contested. Because this requirement was not met, the appeal was inadmissible regardless of the merits of the remaining arguments.

In addition, the Court reiterated that defensive controls by an employer are permissible where they are aimed at investigating specific unlawful conduct, are based on a founded suspicion, and are limited to data collected after that suspicion arises. In cases of misconduct that has already occurred, accessing existing data may be the only effective means of investigation.
As a result, the dismissal remained valid and the data subject’s appeal was rejected on procedural grounds.

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the Italian original. Please refer to the Italian original for more details.

<pre>
usability of the data obtained from the company chat and stated that they should only consider the defenses
presented by the employee in the first instance (on the inadequacy
of the information provided by the company and on whether or not
these controls were attributable to the so-called defensive ones) and not those
belatedly articulated in the appeal and concerning the
violation of Legislative Decree No. 196 of 2003 and EU Regulation
679/2016 (specifically, the identification of the data controller
not in the appellant, but in Amazon Web
Service; the need for consent to data processing from
users; the lack of an impact assessment;
the non-compliance of the policy with Article 5 of the GDPR),
also requesting factual investigations.
They considered that “adequate information” consisted of
the publication of the policy on the company intranet, accessible
to all employees; that the content of the
policy was also adequate, which, in defining electronic systems, includes
instant messaging; furthermore, it prohibits the use of
electronic systems, among other things, for the commission of unlawful acts or acts that
may give rise to suspicion of unlawful acts; that this policy expressly warns
the employee of the possible use, for disciplinary
purposes, of chat conversations in the event of
suspicion of an unlawful act; that the company
policy is referred to in Article 11 of Matteoli’s employment
contract.
1.3. The appeal judges also addressed the issue
of defensive controls and cited the case law
of the Supreme Court that places such controls outside the scope
of Article 4 cited, with the consequence that they are
legitimate as long as they are aimed at ascertaining the unlawful conduct of individual
and specific employees, provided that they are induced by a “well-founded
suspicion” of an unlawful act by these individuals and
if they concern data collected ex post, that is,
after the well-founded suspicion arose. Court of Cassation – unofficial copy
1.4. They established that, in the matter in question, the
well-founded suspicion arose following the verbal
report by employee Alfonso Aragona, dating back
to a period prior to May 30, 2020, which was followed by the
written report of May 30, 2020; the latter,
moreover, contained the chat conversations that took place on May 27
and 29, 2020, between Eros Matteoli and Alfonso Aragona and between
the latter and Fausto Gallo. The appellate judges held that
the acquisition of additional conversations occurred ex
post with respect to the time the well-founded suspicion arose
and that, in any case, in the presence of an immediate or already completed offense
at the time the suspicion arose, the collection
of useful information could only be made with reference
to data already present on the server, otherwise the investigation would be
effectively impossible.
1.5. The territorial court considered the charge
supported by the company chats acquired and deemed
usable, capable of demonstrating how Matteoli, after having
positively evaluated the candidate Laddaga, had
changed his opinion following telephone pressure from
Gallo, issuing a final negative judgment and, furthermore,
agreeing with Gallo to obstructively manage
the internal audits initiated by the human resources offices
of the group companies. It deemed this conduct to be damaging to the
relationship of trust, to the point of justifying the
sanction of expulsion.
2. Eros Matteoli appealed the ruling
on two grounds. The employer company resisted
with a counterappeal.
The Deputy Prosecutor General filed written
arguments requesting the appeal be dismissed. Both parties
filed briefs, pursuant to Article 378 of the Code of Civil Procedure. Court of Cassation – unofficial copy
Right of appeal
1. The first ground of appeal alleges, pursuant to Article 360,
paragraph 1, no. 3 of the Code of Civil Procedure, the violation or misapplication of
Articles 8 of the ECHR, 4 and 8 of Law 300/1970, as well as the
jurisprudential principles regarding defensive controls. The appeal
judgment of the appeal court is challenged insofar as it held
legitimate, in the case of an “instantaneous offense,” the investigation of personal data and
information necessary “for possible
disciplinary action,” even with reference to a period
before the well-founded suspicion arose.
The appellant’s defense refers to the case law of
legitimacy which, incorporating the case law of the European Court of Human Rights (Grand Chamber judgment
of October 17, 2019, in the case Lopez Ribalta and Others v. Spain and,
again, the Grand Chamber judgment of September 5, 2017, in the case
Barbulescu v. Romania), has outlined the limits within which
defensive checks in the strict sense can be carried out.
It reiterates that the following can be considered legitimate: defensive checks aimed
at ascertaining unlawful conduct attributable to individual and specific
employees; those induced by a “well-founded suspicion” of
an unlawful act by that employee; those
that concern data collected after the fact, provided that
a proper balance is ensured between the need to
protect company interests and assets and the protection of
the worker’s dignity and privacy. It further maintains
that, from a temporal perspective, the control
must be “targeted,” or implemented after the fact, meaning
only the control carried out “following the
unlawful conduct of one or more workers whose
employer has well-founded suspicion”; Because only from that moment onwards can the employer proceed with the collection of usable information and, therefore, only from that moment onwards can a restriction of the confidentiality of the worker be justified and considered legitimate (see Court of Cassation – unofficial copy
No. 25732 of September 22, 2021; Court of Cassation No. 18168 of June 26, 2023).
It identifies the determining factor in the time frame to which the
data refers: the control activity is legitimate only if it focuses on information relating to events that occurred from the moment the employer needs to ascertain the commission of an unlawful act and not on information that refers to a previous period. It specifies that
the emergence of a well-founded suspicion is relevant both in terms of
time and space: well-founded suspicion, in fact,
not only identifies the moment from which the
control can be implemented, but also limits the scope
of information collection. All this is to prevent,
out of respect for “(…) private and family life, (…) domicile
and (…) correspondence” enshrined in Article 8 ECHR,
the scope of the employer’s defensive control from extending
backwards, perhaps to the first day of work.
According to the appellant’s argument, the fact that
an employee has committed an offence—even a temporary one—
only once cannot justify a tightening of the
regulations on defensive controls; Indeed, the matter is essentially based
on a balancing of opposing
interests: on the one hand, the employer’s assets and image,
on the other, the dignity and privacy of the
employee. And the instantaneous nature of the offense is
unrelated to both opposing values: for example,
the appellant continues, it is not necessarily true that an
instant offense causes greater damage to the company’s assets or
its image, as could instead happen in the case of a
repeated offense.
2. With the second ground of appeal, the appellant claims, pursuant
to Article 360, paragraph 1, nos. 3 and 4, of the Italian Code of Civil Procedure, the violation or false
application of Article 2697 of the Italian Civil Code and Article 5 of Law 604/66 and 115
of the Italian Code of Civil Procedure. The Court of Cassation – unofficial copy criticizes the second-instance ruling for having based the decision on the circumstance that there had been
a “report from Aragona, initially verbal (…) on
an unspecified date but in any case prior to
May 30, 2020″; it claims an error in procedendo and the nullity of the
proceedings, due to the violation of the principle of
availability of evidence (pursuant to Article 115, paragraph 1, of the Code of Civil Procedure).
The appellant challenges the appeal ruling regarding
the attainment of evidence regarding the emergence of well-founded
suspicion prior to May 30, 2020. It states that,
regarding the burden of proof, “there can be no doubt that the burden falls on the employer to first allege and then prove the
specific circumstances that led him to activate the ex-post technological control, given that only “well-founded
suspicion” allows the employer to place his action
outside the scope of direct application of Article 4 of the Labour
Statute.” It cites in this regard Supreme Court decision no. 18168 of June 26, 2023.
It claims that the Court of Appeal violated Articles 5 of Law
604/66, 2697 of the Civil Code, and 115 of the Code of Civil Procedure when, in order to ascertain the
legitimacy of the dismissal, it used chat messages dating back
to days prior to May 30, without the company having
proven the existence of a well-founded suspicion as early as May 27.
3. The counter-appellant company objected in the proceedings
to the inadmissibility of the appeal due to the res judicata formed on the
independent ratio decidendi, consisting of the classification of the
company chat as a work tool, pursuant to Article 4,
paragraph 2, as it is functional to the performance of work and,
in this case, used for work-related reasons
(judgment, pp. 11-12).
4. The objection raised by the company is well founded, and this
entails the inadmissibility of the appeal in question.
5. It is necessary to report the text of Article 4 of the Labour Code, in the version
applicable ratione temporis pursuant to Legislative Decree No. 151 of
2015, which provides: “1. Audiovisual systems and other equipment that also allow for remote monitoring of workers’ activities may be used
exclusively for organizational and production needs, for
workplace safety, and for the protection of company assets.
They may be installed subject to a collective agreement stipulated
by the single trade union representation or by the
company trade union representatives. […] In the absence of an
agreement, the equipment and equipment referred to in the first sentence
may be installed subject to authorization from the local
office of the National Labor Inspectorate or, alternatively,
in the case of companies with production units located
within the areas of jurisdiction of multiple local offices, from the
central office of the National Labor Inspectorate. The
measures referred to in the third sentence are final.
2. The provision of paragraph 1 does not apply to
the tools used by the worker to perform the work
and to the tools for recording access and
attendance.
3. The information collected pursuant to paragraphs 1 and 2 may
be used for all purposes related to the employment relationship,
provided that the worker is given adequate information
on how to use the tools and carry out the
checks and in compliance with the provisions of Legislative Decree
No. 196 of June 30, 2003.
6. The contested ruling is based on two independent rationes
decidendi, used by the appeal judges in response to the
questions promptly raised by the worker in the first
instance court and reiterated with the grounds for appeal.
The first ratio decidendi is based on the classification of the
company chat as a work tool, pursuant to the
amended Article 4, paragraph 2, of Law No. 300 of 1970,
as it is functional to work performance. The ruling
aligned with the Supreme Court’s case law (see Court of Cassation – unofficial copy
Cass. No. 25731 of 2021) which classifies company chat
as a work tool.
The possibility of using data and information collected through
work tools “for all purposes,” including disciplinary
purposes, is governed by the third paragraph of the
cited article. 4 and subject to two conditions: the first
condition is that the worker be given “adequate information on how to use the tools and how to
perform the controls,” the second condition concerns
compliance “with the provisions of Legislative Decree No. 196 of June 30, 2003.”
The appeal ruling held, in the case at hand,
both conditions were satisfied and, therefore,
the content of the company chat could be used for disciplinary purposes.
7. The second ratio decidendi concerns the issue of so-called
defensive controls.
This expression refers to controls, including
technological controls, implemented by the employer and aimed at
protecting assets outside the employment relationship or preventing
illegal behavior.
As pointed out by this Court, a distinction must be made between
controls for the protection of company assets that concern
all employees (or groups of employees) in the performance
of their work that places them in contact with Such
assets, controls that must necessarily be
carried out in compliance with the provisions of the amended Article 4 in
all its aspects, and “defensive controls” in the strict sense,
aimed at specifically ascertaining unlawful conduct attributable
—based on concrete evidence—to individual employees, even if
occurring during the performance of their work. These latter
controls, even if carried out with technological tools,
do not target the worker’s normal activity, and are
outside the scope of Article 4 (Court of Cassation – unofficial copy
no. 25732/2021 cited, points 31 and 32; Court of Cassation no. 18168 of 2023,
p. 7). Since it does not target an activity—in the technical sense
—of the worker, defensive controls in the strict sense must
be targeted and implemented ex post, that is, following the
unlawful behavior of one or more workers of which
the employer had a well-founded suspicion,
because only from that moment onwards can the employer
gather usable information (see Cass.
No. 25732/2021 cited, points 40 and 44).
Defensive checks in the strict sense are therefore considered
legitimate only where the employer has a “well-founded suspicion”
of unlawful conduct by one or more workers and
provided that the check concerns data acquired after
the suspicion arose, ensuring a proper
balance between the need to protect company interests and assets,
related to freedom of economic initiative,
with respect to the essential protections of the dignity and
privacy of the worker (see Cass. No. 25731 of 2021;
Cass. No. 25732 of 2021; Cass. No. 34092 of 2021; Cass. No.
18168 of 2023).
8. From these premises, it follows that the two rationes decidendi,
on which the appeal ruling is based, are
autonomous and alternative in nature, given that the first calls into question
the provisions of Article 4, paragraphs 2 and 3 of the Labour Code, while the
second, concerning defensive controls, clearly falls
outside the scope of the aforementioned Article 4.
9. The grounds of appeal concern, solely, the second ratio
decidendi and argue extensively on the principles of case law regarding defensive controls and on the
necessary posteriority of technological control with respect to the emergence of the well-founded suspicion. No objection is
articulated in the appeal regarding the first ratio decidendi, i.e., the
qualification of the company chat as a work tool
and the occurrence of the conditions set out in the third paragraph of Article 4. cit., in order to ensure the usability of the information
collected for disciplinary purposes.
This determines the inadmissibility of the appeal.
Indeed, according to the consistent case law of this Court,
when a ruling based on multiple rationes
decidendi, all independently capable of supporting it, is challenged,
in order to reach the annulment of the ruling, it is necessary
that each of them has been the subject of a specific challenge;
otherwise, the failure to challenge one of the autonomous
rationes decidendi or the resistance of one of them
to the challenge, and therefore the finality of the decision on
the point, renders the challenge
relating to the other rulings inadmissible due to lack of interest since it is incapable of determining the
annulment of the aforementioned ruling (see Cass. No. 3633 of
2017; No. 18441 of 2017; No. 3386 of 2011; No. 24540 of
2009; no. 4349 of 2001).
The appeal must therefore be declared inadmissible.
10. The costs are settled according to the losing party’s
criterion, with liquidation as in the operative part.
11. The dismissal of the appeal constitutes a procedural prerequisite
for the doubling of the unified contribution, pursuant to art. 13,
paragraph 1-quater, of Presidential Decree no. 115 of 2002 (see Cass. S.U.
no. 4315 of 2020).
P.Q.M.
The Court declares the appeal inadmissible and orders the
appellant to reimburse the costs of the appeal,
which it settles at €200.00 for disbursements and €4,500.00 for
professional fees, plus reimbursement for general expenses at
15% and statutory accessories.
Pursuant to art. 13, paragraph 1-quater, acknowledges the existence
of the procedural requirements for the payment by the
appellant of the additional amount as a unified contribution
equal to that provided for the appeal, pursuant to paragraph 1-bis
of the same Article 13, if applicable. Court of Cassation – unofficial copy
Thus decided at the public hearing of October 8, 2025
The Councilor est. The President
Carla Ponterio Antonio Manna
</pre>

Rb. Amsterdam – ECLI:NL:RBAMS:2025:10200

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