Employee on sick leave and abuse of Law 104: when the company can have them monitored.

The medical certificate that arrives punctually on the eve of every long weekend. The employee off work with severe lower-back pain whom colleagues bump into at the five-a-side football pitch. Law 104 leave permits systematically requested on Fridays, while the family member who should be cared for is left alone. These are situations every entrepreneur and HR manager knows well: fraudulent absenteeism means wages paid for nothing, replacements to organize, orders running late - and a toxic effect on the internal climate, because it demotivates those who genuinely do their job, who also end up shouldering the absent colleague's work.

Faced with a suspicion, however, many employers freeze over one doubt: can I have an employee on sick leave monitored without breaking the law? The answer, under precise conditions, is yes. The case law of the Court of Cassation has for years recognized the legitimacy of defensive checks entrusted to an authorized investigation agency when they serve to ascertain unlawful conduct by the worker outside the work performance. This guide explains when monitoring is lawful, which behaviours turn sick leave into fraud, what those who abuse Law 104 leave permits risk, and how to build a dossier that holds up before the labour court.

Is it legal to have an employee on sick leave monitored?

It is the most searched-for question - and the most misunderstood. The Workers' Statute (Law 300/1970) prohibits the employer from having the work activity supervised by external personnel: an investigator cannot be instructed to check how the employee performs their duties. Defensive checks are another matter: according to the settled position of the Court of Cassation, the employer may engage an investigation agency to ascertain unlawful conduct outside work - feigning illness, moonlighting during paid absence, the distorted use of leave permits - because in these cases it is not the work performance that is being watched: what is being verified is the breach of the bond of trust and a possible offence, including a criminal one.

For the monitoring to be legitimate and the evidence to remain usable, three conditions must hold:

• A concrete, substantiated suspicion: anomalous absence patterns, reports, documentary inconsistencies. No generalized «blanket» checks on staff.
• Observation only in public places or places open to the public: streets, shops, events. Never intrusions into the home or wiretapping, which would render the evidence unusable and expose the company to liability.
• An authorized operator: the assignment must go to an agency holding a prefectural licence under art. 134 TULPS, operating within the bounds of the GDPR (Regolamento UE 2016/679) and documenting every phase with a traceable method.

When sick leave becomes fraud: typical conduct

A worker absent on sick leave is not only required to be available for medical control visits: they must also refrain from any behaviour that could impair or delay recovery. Case law (see Cass. Civile n. 17113) considers summary dismissal legitimate when this violation emerges from the facts. The scenarios we document most often:

• Moonlighting during sick leave: the employee, paid by the company and by INPS, works for third parties - often off the books. Learn more about our investigations into moonlighting and employee disloyalty.
• Activities incompatible with the declared condition: severe lower-back pain followed by house moves and five-a-side football matches, certified anxiety disorders and holidays documented on social media.
• «Strategic» illnesses: certificates that systematically cover long weekends, public holidays, unwelcome shifts, or coincide with the rejection of a leave request.
• Artificially prolonged convalescences: the return to work postponed with back-to-back certificates while the person leads an entirely ordinary life.

Abuse of Law 104 leave permits: what the employee risks

Art. 33 of Law 104/1992 grants paid leave to workers caring for a family member with a severe disability. The precondition is the functional link between the absence and the care provided: the permit is not an extra day off, and using it for shopping, leisure, trips far from the home of the person being cared for, or a second job defeats the very purpose of the benefit.

Principle of the Court of Cassation: using the leave permits under art. 33 of Law 104/1992 for purposes other than care constitutes a breach of the duties of fairness and good faith towards the employer and the welfare body, capable of radically undermining the bond of trust and of justifying dismissal for just cause.

The consequences do not stop at the disciplinary level: since the allowance is advanced by the company and charged to INPS, the abuse may amount to aggravated fraud against the State (art. 640, comma 2, n. 1 c.p.). The investigative dossier thus becomes a key piece of evidence both in employment litigation and in any criminal complaint. For the operational angle, see the dedicated service on investigations into the abuse of Law 104 leave permits.

Why the INPS medical control visit is not enough

Many companies rely solely on the official medical control visit, but INPS checks take place within rigid, largely predictable availability windows: the «fake patient» only needs to stay at home during the right hours and can then devote the rest of the day, weekends and public holidays to their own activities. The visit, moreover, captures only the person's condition at that moment and says nothing about what the employee does when no one is watching.

A private investigator operates dynamically, with no time constraints, concentrating the observation precisely in the moments when the subject feels safe. The video and photographic evidence gathered this way describes the worker's actual conduct and makes it possible to overcome in court the presumption of truthfulness of the medical certificate, demonstrating the objective incompatibility between the documented behaviour and the declared condition.

Evidence that holds up before the labour court: the method

For the dossier to withstand challenges, the method matters as much as the result. Arcadia Company's protocol for fake sick leave and absenteeism investigations follows four phases:

1. Preliminary analysis with HR: study of shifts, absence history and recurring patterns to define the timing and objectives of the observation.
2. Dynamic observation: tailing and stakeouts in public places, carried out by professional investigators in full compliance with the law.
3. Evidential crystallization: video and photographs with certified date and time, handled with a digital evidence chain of custody.
4. Forensic report: a chronological, documented dossier, ready for the disciplinary charge and producible in court; our investigators can testify as witnesses at hearings.

One necessary clarification: a serious agency does not promise «proof of guilt». If the employee is genuinely ill, the investigation establishes it - and that is still a valuable outcome, because it spares the company an unfounded disciplinary charge and a dispute lost before it starts. Some anonymized examples of our work can be found in our publishable cases.

How long a check takes and how much it costs

An investigation into absenteeism or the abuse of leave permits generally lasts from 3 to 10 operational days, concentrated in the moments with the highest probability of wrongdoing identified in the preliminary analysis. Timing, objectives and budget are set out in writing before we begin: no surprise costs at settlement. For an overview of rates, see the page on how much a private investigator costs.

Sesto San Giovanni, North Milan and Brianza: confidential protection for your company

Arcadia Company's operational headquarters is located in Sesto San Giovanni, at Piazza Don Mapelli 60: a strategic position for serving businesses across the entire northern belt of Milan, the surrounding towns (Cinisello Balsamo, Cologno Monzese, Bresso, Cusano Milanino) and the province of Monza and Brianza, with the possibility of operating throughout Italy.

Every engagement starts with a confidential consultation, protected by professional secrecy, in which we assess the case and its real evidentiary viability before taking a single step. If you suspect a case of fake sick leave, moonlighting or abuse of Law 104 leave permits in your company, request a confidential analysis: a preliminary assessment with no commitment, with an ISO 9001 certified method.