Abuse of Law 104 Permits and Covert Monitoring: The Supreme Court Confirms Dismissal

1. The facts

   The case, which reached the final stage of judgment before the Supreme Court of Cassation, stems from the summary dismissal of an employee who benefited from permits provided for the assistance of a disabled relative. According to reports from Il Sole 24 Ore, the employer, suspicious of the actual use of these absences, hired a private investigation agency to monitor the employee's movements during the permit days. The investigators' reports showed that the worker, instead of going to the relative's home, spent most of the day running personal errands, visiting leisure spots, or staying at their own home without the disabled person. In the lower courts, both in the first instance and on appeal, the judges ruled that such conduct constituted a serious abuse of rights and a violation of the principles of fairness and good faith. The worker appealed the judgment, claiming the monitoring was illegal, but the Supreme Court rejected the appeal, definitively confirming the legitimacy of the dismissal for just cause, highlighting the fraudulent nature of the conduct toward the INPS and the employer.

2. 

   The laws at play

   The regulatory core of the case lies in Art. 33 of Law 104/1992, which guarantees three days of paid monthly leave for assisting family members with severe disabilities. This is paired with Art. 2119 of the Civil Code, which governs just cause for dismissal as a breach so serious that it prevents the continuation of the relationship. Furthermore, the distinction made regarding Articles 2 and 3 of the Workers' Statute is fundamental, as they limit the use of security personnel for monitoring work performance. Finally, Articles 1175 and 1375 of the Civil Code impose obligations of fairness and good faith on the parties to the contract, the violation of which can lead to the termination of the contractual bond due to the employee's fault.

3. What the case law says

   The Supreme Court case law has established a rigorous orientation, clarifying that controls carried out via private investigators are legitimate when aimed at verifying illegal conduct by the worker outside of work activities. These defensive controls do not fall under the prohibition of the Workers' Statute because they do not concern the fulfillment of the job, but the protection of company assets and the bond of trust. The judges also specified that, although caregiving does not necessarily have to be continuous for the full 24 hours, there must still be a predominant causal link between the absence and the care of the disabled person. Using the time for purely personal purposes is qualified as a diversion from the social function of the rule, constituting a definitive breach of the trust the employer places in the employee.

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8. What it teaches professionals

   1. Validity of evidence: ensure that the mandate to the investigation agency specifies the defensive nature of the monitoring to avoid its annulment in court.
   2. Technical distinction: clearly separate monitoring of work efficiency (prohibited if covert) from monitoring of non-work illegalities that damage assets.
   3. Causal link evaluation: analyze investigative documentation not only for absences from the disabled person's home but for the incompatibility of the activities performed with caregiving.
   4. Prudence in the dispute: calibrate the disciplinary charge on the loss of the bond of trust rather than just the physical absence.

References: Legge 104/1992, Art. 33Codice Civile, Art. 2119Codice Civile, Art. 1175Codice Civile, Art. 1375Legge 300/1970 (Statuto dei Lavoratori), Art. 4

Editorial oversight: Avv. Federico Papa·ICAMUpdated 29 August 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction