In the field of Corporate Investigations, for which the AIRO investigative institute holds a license issued by the Prefecture of Brescia, one of the types of investigations that is often requested is related to the abuse by workers of the leave provided by Law 104/92.

Law no. 104 of February 5, 1992, establishes in article 33 the possibility for an employee to take leave from work by using special permits in case they are affected by severe disabilities or need to assist relatives with disabilities.

The employee in the aforementioned situation is entitled to three working days per month, which can also be taken in hours.

Regulatory provision - Art. 33 paragraph 3 of Law 104/92

Provided that the handicapped person is not hospitalized full-time, the employee, public or private, who assists a person with a severe handicap, spouse, relative, or in-law up to the second degree, or up to the third degree if the parents or spouse of the person with a severe handicap have reached sixty-five years of age or are also affected by disabling pathologies or are deceased or missing, is entitled to three days of paid monthly leave covered by figurative contributions, even continuously.
This right cannot be granted to more than one employee for assisting the same person with a severe handicap. For assisting the same child with a severe handicap, the right is granted to both parents, including adoptive ones, who can use it alternately

Abusing the permissions of Law 104 is one of the main reasons for disputes between employers and employees.

Indeed, anyone who, during the paid leave day to assist a disabled family member, engages in additional tasks and personal activities other than providing assistance to the person with a disability commits a "fraud," not only against the employer (due to the use of paid leave in a manner not consistent with the objectives agreed upon by law) but also against the national social security system (since the allowance is provided by INPS, the cost of their abuse is shifted onto the community).

The abuse of the worker's right to take advantage of the leave provided for in Article 33 of Law No. 104/1992 is therefore conduct capable of irreparably damaging the relationship with their employer and justifying dismissal.

Jurisprudential practice

Judgment of the Court of Cassation no. 18411 of 2019
The Court of Appeal of Bologna confirmed the first instance judgment declaring the legitimacy of the dismissal given by the defendant company to its employee for abuse of the leave provided for in art. 33 of Law no. 104/1992.
In particular, the court of merit found that evidence had been provided regarding the abuse of two leaves as shown in the report of the investigative agency hired by the employer.
On both days in question, it emerged that the employee had neither entered nor left his home between 06:30 and 21:00 and, therefore, had never gone to the (different) residence of his aunt to provide her assistance.
On the contrary, the worker had always claimed to provide "regular assistance to the aunt, except for a few hours of the day."
The investigators had never seen the aforementioned arrive at the latter's residence on the indicated days, which justified the expulsion measure due to the social and ethical disvalue of the conduct and the irremediable compromise of the fiduciary bond.
The Judges of legitimacy, with judgment no. 18411/2019, confirmed the challenged decision.
The territorial Court "with logically congruent reasoning, addressed the issue related to the abuse of leave under art. 33, paragraph 3, Law no. 104/1992, noting that the investigative report produced by the employer (and confirmed by the investigator in the testimonial evidence) demonstrated that the employee, on the contested days, had never gone to his relative's residence."
For these reasons, the appeal was rejected, and the dismissal of the appellant was definitively confirmed.
Recently, the Court of Cassation with judgment no. 4984/2019 reiterated the employer's right to resort to private investigations on the employee to monitor the use of the leave under Law 104/92, both to protect the company's assets and to verify the fulfillment of work performances and thus ascertain specific shortcomings of the employees, pursuant to articles 2086 (Management of the enterprise) and 2104 (Diligence of the worker) of the Civil Code.

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Private investigations, private investigator, investigative agency, investigative institute, surveillance

investigations law 104, assistance for disabled handicapped, abuse of law 104, employee monitoring law 104