Whistleblowing and the related whistleblower protection

Italian legislation on whistleblowing was further developed by the recent entry into force of Law no. 179/2017, which made significant changes to Article 54-bis of the Consolidated Law on Public Employment (Legislative Decree no. 165/2001), concerning employment with public entities, whilst, with regard to the private sector (targeted in this article), it just focused on the regulation of the responsibility of the entities (meaning by this, the legal entities recognised as such, as well as companies and associations even without legal personality), adding three new paragraphs, 2-bis, 2-ter and 2-quarter, to Article 6 of Legislative Decree no. 231/2001.

Specifically, paragraph 2-bis provides that a “Model of organisation, management and control” (the “Organisational Model[s]”) shall make available one or more specific communication channels to the persons who hold positions of management of the entity, to the individuals subject to the direction or supervision of any of these persons, and to those who collaborate for any reason with the entity, to allow them to report in detail any unlawful conduct or violation of the organisational model of the entity they have become aware of  by reason of their functions, for the purpose to protect the integrity of the entity itself, provided that the detailed reports are based on precise and consistent factual elements, even though no sure proof is required. These whistleblowing channels (at least one of which required to be computerised) shall guarantee the confidentiality of the identity of the informant (i.e. the “Whistle-blower”) in the management of the report.

Besides, the Organisational Models shall prohibit any act of retaliation or discrimination, direct or indirect, against the informant for reasons in any way related to the report made. And beyond, the disciplinary system laid down in the same models shall establish sanctions both against those who violate the measures to protect the Whistle-blower, and those who, with wilful misconduct or gross negligence, make reports that prove then to be unfounded.

Paragraph 2-ter also provides that the Whistle-blower, or his/her appointed trade union, may report any discriminatory measures adopted against the same Whistle-blower to the National Labour Inspectorate, pleading the application of the measures within the jurisdiction of the latter.

Finally, paragraph 2-quater, provides that any retaliatory or discriminatory dismissal, change of duties, and/or any other retaliatory or discriminatory measure adopted against a Whistle-blower are considered null and void.

It should also be noted that Article 3 of Law no. 179/2017 set out that any action in the primary interest
to defence the integrity of the administration offices (whether public or private), or else  aimed to the prevention and/or repression of embezzlement by any public or private employee, by means of a report of any illegal activity, is to be deemed a just cause allowing for disclosure of mandatory secrecy (referred to by Article 622 of the Criminal Code), professional secrecy (referred to by Article 622 of the  Criminal Code), scientific and industrial secrecy (referred to by Article 623 of the Criminal Code), and allowing for the breach of the obligation of trustfulness to one’s employer referred to by Article 2105 of the Civil Code.

Whenever the said just cause exists, such conducts are exempt from prosecution or sanction, provided, however, that the disclosure of professional secrecy does not take place in a manner exceeding the purposes of the elimination of the offence. The exemption shall not apply, however, where the obligation of professional secrecy should bind any person who has become aware of the information as a result of a relationship of professional advice or assistance with the entity, undertaking or natural person concerned.

In this regulatory framework, it is clear how important it is for companies to adopt an organisational model that regulates whistleblowing accurately and thoroughly, in order to protect and guarantee those who report any illegal conduct and, at the same time, sanction those who, on the other hand, even just for a guilty lightness, make complaints that prove to be unfounded.